Hendricks v. Bouck , 4 E.D. Smith 461 ( 1855 )

INGRAham, P., J.

The papers submitted in this case do not distinctly show for what purpose the costs were adjusted, but I conclude from the points that the question arises as to what costs the plaintiff should pay on amending his complaint, after a demurrer to it had been sustained.

Two items were disallowed upon adjustment — one was for proceedings before notice of trial, $5, and the other costs of nine terms, at $90.

If the defendant was about to enter up judgment against the plaintiff after the decision on the demurrer, the first item was perfectly allowable.

I am also inclined to think that it is to be allowed if the plaintiff elects to amend. The Code allows it for proceedings before notice of trial, although that was mainly in reference to a case where an issue of fact has been tried, still it is fairly included in the costs of a demurrer.

It is the only item allowed for pleadings to the plaintiff for his complaint — to the defendant for his answer, and in the present case to the defendant for his demurrer. The costs of drawing, &c., of the demurrer, were taxable before the Code, and nothing in the practice now alters that rule. Whatever, therefore, is intended to pay for this pleading in the present fee-bill should be allowed. As the plaintiff consents that this item should be allowed on the appeal, it is unnecessary to discuss it further.

The other item for term fees was properly disallowed. It does not appear from the papers whether it was on the trial or argument calendar. If on the trial calendar (which I suppose was not the case here,) it was not chargeable as part of the costs on the demurrer.

If on the argument calendar, it would be taxable if the cause was not reached or postponed, and not otherwise. We have repeatedly so decided. In this court there never has been, to my knowledge, since the present arrangement of our terms, an instance in which the special term calendar has not been called, and in which every cause on it could not have been heard if the parties so elected. No case has occurred when every cause upon it has not been reached. If parties will not dispose of their cases when so reached, they are not entitled to the costs of the term. Either party may notice, and either party so noticing may have the opportunity of disposing of his case if he sees fit at the commencement of the term. If he neglects so to do, he loses the costs of the term. There is no ground whatever upon which the court can allow it, without counteracting the very object of the statute.

The adjustment of costs must be corrected by allowing the first item for proceedings before notice, $5.

No costs allowed on this appeal.