Reformed Protestant Dutch Church of Westfield, Staten Island v. Brown

Barnard, Justice.

The Code makes no provision for taxing as costs in court of appeals, any other sums than $25, before argument; $50 for argument, and $10 term fees. The first two items in the bill were properly disallowed.

An appeal to the court of appeals is not properly or necessarily on the calendar till the return is filed. Until that is done, the court would not hear the case, and it could not be reached on the calendar till after the return is filed, because by rule 8 the date of filing of the return is the date of the issue. ■ Rule 2 provides a remedy in case the appellent does not file his return, which is by motion to dismiss. This motion was not on the calendar. Unless a cause is in a situation to be heard when reached, it is neither necessarily nor properly on the calendar. Under the rule, a cause cannot be placed , on the calendar until the return is filed.

For all the terms at which this cause was noticed prior to the filing of the return, no term fees can be allowed.

The bill as taxed must be reduced $30, charged for term fees prior to filing the return ; also $4 for error, in addition by taxing officer, 'of $10 and $15. The items of $1 and $1.38 should also be deducted in case the costs be paid without entry of judgment.

Affirmed at general term, October, 1862, Ingraham, Leonard and Barnard, Justices.