Wiggins v. Arkenburgh — 6 N.Y. Super. Ct. 688

Majority

p. 688

Wiggins v. Arkenburgh.

Headnote

In a suit- for a partnership account, a fee for the trial of issues of law, is taxable on the cause being heard on the special term calendar, and a reference to take an account directed.

Where there are issues of fact in an equity case, and on the reference of the cause, the referee determines the questions of fact involved, the prevailing party is entitled to the fee for the trial of issues of fact, although the order of reference reserve all other questions.

On a motion for a re-hearing in such a case, before the general term, a fee for the trial of issues of law is taxable.

January 17, 1852.

This was a suit for an account of a joint adventure. The cause was on the calendar for hearing at the special term in .June last, and the judge, after hearing counsel, made an order referring the cause to a referee to take an account between the parties, and to report the amount due from the defendant to the plaintiff. The order contained the usual powers and directions, and reserved all further questions until thb coming in of the report. The referee took the account, and reported a balance due to the plaintiff.

The defendant prepared to move to set aside the report, or for a re-hearing, and both parties noticed the cause for argument for the November and December general terms. The motion was not made, and the plaintiff had judgment for the amount due to him -with costs. On adjusting the costs by the clerk, he allowed to the plaintiff the following items : Trial fee at special term, $15; trial'fee before referee, $20; term fee, November term, $10 ; trial fee, December term, $15. The defendant objected to the allowance of more than one trial fee; and moved the court to correct the adjustment.

p. 689

T. J. Gbver, for the defendant.

H. A. Oram, for the plaintiff.

with the concurrence of all the Justices, held that the trial fee at the special term was properly allowed, the cause being on the calendar, and the issue of law being disposed of, so far as to decide that an account should be taken.

The issues of fact in the case appear to have been all tried before the referee, and in all equity cases where there are issues of fact, and the reference determines those questions, the proceeding before the referee is, in regard to costs, the trial of the issues of fact in the cause. The points of law consequent on his report were reserved, and the trial before him canuo't therefore' be deemed a trial of the issues of law also. The clerk should have allowed only fifteen dollars for the trial before the referee.

The subsequent fee at the general term was taxable. The cause was on the calendar on the motion for a re-hearing. Where there is no argument on the equity reserved, and judgment is at once entered pursuant to the report, the court is not inclined to allow a fee as for the trial of an issue of law, on moving for such judgment.