Third National Bank v. McKinstry — 5 Thomp. & Cook 52

Majority

p. 52

Third National Bank of Syracuse v. McKinstry.

Headnote

Costs—trial fee — Trial — what is not.

A trial was commenced at the circuit, a jury impaneled, and a witness sworn and examined, when the court ordered the case referred to a referee to hear ■ and determine, and the ease was afterward tried and determined by the referee. Held, that there was no trial at the circuit, and the successful party was entitled tto a trial fee, only for the trial before the referee.

Appeal by defendants from an order at the special term disallowing the taxation of a trial fee.

The action was brought in Onondaga county by the plaintiff above named against Alexander McKinstry and others. The trial of the same was commenced at the circuit, a jury impaneled, a wit

p. 53

ness was sworn and examined, when the court of its own motion ordered the cause referred to Cyrus Sweet, Esq., to hear and determine the same, the costs to abide the event.

The cause was tried before the referee, and the result was in favor of the defendant.

The defendant claimed to tax two trial fees, one for the trial before the referee and one for a trial at the circuit. The court, at special term, disallowed the item of a trial fee at circuit, and allowed, in place thereof, a term fee alone.^[1]

William C. Ruger, for appellants.

Hiscock, Gifford & Doheny, for respondent.

A trial is a judicial examination of the issues between the parties. Code, § 252. Such an examination may be had without being followed by a conclusion, determination or verdict, e. g. when a jury disagree, or a juror is withdrawn, or when a complaint is dismissed. But when the court refuses to examine the issues, and of its own motion sends the case to a referee, it would be a stretch of common sense and of law to hold that there had been a trial. What issue of law or of fact was judicially examined by such a proceeding? And yet it is only for a trial, so defined that a trial fee is allowed. Code, § 307, subd. 4. ISTone of the cases cited by the appellant support his appeal.

We think the order appealed from should be affirmed, with §10 costs.

Order affirmed.