Bloch v. Linsley ( 1903 )

Gildersleeve, J.

The action came on twice for trial. On the first trial the plaintiff withdrew a juror. On the second trial the plaintiff obtained a verdict. On the taxation of costs the sum of twenty-five dollars was allowed “ after the granting of and before the new trial.” The defendants on motion for a new taxation, insisted that this item should be disallowed. The Code, section 3251, subdivision 3, provides that: “ Where a new trial is had, pursuant to an order granting the same, * * * for all proceedings after the granting of, and before the new trial, * * * twenty-five dollars.”

We think the taxation of the twenty-five dollars was erroneous. It is true that, in view of the authorities, it must be held that when a trial has been duly commenced, and the court has allowed the withdrawal of a juror and the discontinuance of the trial, it is a trial, within the meaning of the Code, for the purpose of taxing a trial fee to the party finally successful. In the case at bar the juror was withdrawn at the instance of the plaintiff, who, upon succeeding at the second trial, procured the taxation of twenty-five dollars costs, upon the theory that a new trial, pursuant to an order granting the same, had been had, within the meaning of the tenth paragraph of subdivision 3 of section 3251 of the Code of Civil Procedure, above quoted. It is only, after the trial of an action, that an order may be made, granting a new trial, so as to entitle the successful party to tax the item of twenty-five dollars costs here under consideration. The only order here made, subsequent to the withdrawal of a juror, was an order restoring the cause to the day calendar for trial at a subsequent term. Such an order cannot properly be characterized as an order for a new trial. There was no order granting a new trial, and for this reason the item of twenty-five dollars costs after the granting of and before the new trial was improperly taxed.

The order of the court below is reversed, with ten dollars costs and disbursements, and the motion to disallow the item of twenty-five dollars for proceedings after the granting of and before the new trial is granted, with ten dollars costs.

Feeedmait, P. J., and Giegeeich, J., concur.

Order reversed, with ten dollars costs and disbursements, and motion for a new trial granted, with ten dollars costs.