People on the relation of Severis v. Van Dusen , 1849 N.Y. Misc. LEXIS 20 ( 1849 )

Harris, Justice.

Whether a Plaintiff, entitled to costs, is to be allowed $7 or $12, for “all proceedings before notice of trial,” does not depend upon the question whether application has in fact been made to the court for judgment, but upon the nature of the action. If the action is one in which, in case the Defendant makes no defence, judgment may be entered under the first subdivision of the 262d section, then, in no event, can more than $7 be allowed for all the proceedings before notice of trial. On the other hand, if the action be one in which, in case of no defence, application must be made to the court for proper judgment under the second subdivision of the same section, then, in every case in which he recovers costs, the Plaintiff is entitled to $12. The clerk is, therefore, wrong in his construction of the section referred to, and the motion must be granted.