Boynton v. Dormott , 3 How. Pr. 232 ( 1848 )

Willard, Justice.

The fee bill does not give any thing for notice of trial and inquest, in addition to the copy and service, but it allows 25 cents only for “ every notice, copy, and service thereof.” (2 R. S. 725, 3d ed.) The proof of service of notice of trial is unnecessary. The Plaintiff moves the trial at the circuit at his peril, and the presiding judge is governed by the calendar. No evidence that the cause has been noticed for trial is required. The clerk is not entitled to any thing for filing a note of issue as a distinct charge. It is embraced in the 25 cents allowed Mm for every cause noticed for trial or argument, and entering the same on the calendar. (2 R. S. 726, 3d ed.) The clerk is not entitled to the fee of 50 cents, unless the cause is tried. (Ibid.) It is not given to him when the cause is put off without a trial. The sheriff is entitled to the fee of 50 cents for summoning a jury to attend the court in each cause noticed for trial, or placed on the calendar thereof for trial. (2 R. S. 736, 3d ed.) The oath to the proof of the attendance of witnesses, is embraced in the 50 cents given specifically for that service, and is not taxable as a distinct item.

The charge for attorney and counsel attending prepared for trial, are both taxable, since the act of 1844, chapter 273. That act altered the phraseology as to counsel, which was contained in the act of 1840, page 327, § 2, under which it was held in Schenck v. Lathrop, 3 Hill, 449, that a counsel fee was not taxable for attending prepared for trial. The same case, however, holds, that- an attorney's fee for attending prepared, is allowable, in conformity to Wilson v. White, 2 Wend. 265, and Lamb v. Coe, 19 Wend. 127. The proof of service of copy costs, and notice of taxation, is unnecessary. No other copy costs is taxable than such as is actually served upon the opposing party, or delivered to him, or his attorney, upon request. (2 R. S. 725, 3d ed.) A certified copy of the order, putting off the trial, is unnecessary, and is therefore not taxable.

The Plaintiff’s attorney is not entitled to the fee of one dollar for opposing the motion to put off the trial. The charge in the fee bill, (2 R. S. 724, 3d ed.) of $1, for arguing every special motion, applies only to motions at a general or special term.