Wilson v. White — 2 Wend. 265

Majority

p. 265

Wilson vs. White.

Headnote

An attorney'sfee on trial or on argument may be charged, although the attorney does not in fact attend.

Where a motion is suspended by consent, brief and fee are not, taxable.

Motion for re-taxation of costs. An attorney’s fee was allowed by the commissioner on hearing before referees, at the day for which the same was noticed, and at an adjourned meeting ; and the same fee was taxed for three terms, when the cause was noticed for argument on a motion by the defendant to set aside the report of the referees. It appeared that the attorney had not in fact attended either at the hearing before the referees or at term, but counsel had attended.

In the fee bill, the allowance to counsel is for the trial of a cause, or arguing a demurrer, or a special verdict, or case, or in error, or attending prepared for such trial or argument in pursuance of notice. The same sum is allowed to the attorney for arguing demurrer, special verdict, case, or in error. The alternative of attending prepared, however, is omitted, and probably because it would have been tautologous. The only question is, whether the charge should be made when the attorney does not in fact attend. The court are of opinion that it may be made. The fee bill gives the attorney a fee for arguing a demurrer, &c.

p. 266

although it is well known that an attorney as such never in fact argues a cause in court, none but counsel being heard. The allowance, therefore, is not made for his attendance ; for if he did attend, he could not be heard : it is for preparing the cause for argument, advising with counsel, &c. The costs were therefore correctly taxed in this particular.

There were several other items of less consequence objected to, some of which were sustained ; amongst which was a charge of a brief,and fee on a motion which was not made after notice by arrangement between the parties, and on that account a re-taxation was ordered.