Kahn v. Coen. KAHN v. COEN. N. Y. Common Pleas, Special Term; May, 1894. 1. Costs; term fees.] Term fees are allowable for terms during which the cause is on the general calendar awaiting trial in the usual course. " 2. The same.] For the purpose of taxing costs, a cause is "necessarily upon the calendar when regularly and properly placed there. Motion by plaintiff for the re-taxation of costs allow.ng defendant five term fees. The action was brought by Rosa M. Kahn against Howes Coen, and issue joined Feb. 16, 1893. Plaintiff filed a note of issue for the March term of 1893, and served defendants with notice of trial. The case remained on the general calendar during the terms of March, April, May, June, October and November, and upon December 13, 1893, it appeared on the day calendar. By consent the case was continued from time to time until April 3, 1894, when it was tried, and a verdict rendered for defendant. L. B. Bunnell, for the motion. Coggill & Smith, opposed. BISCHOFF, Jr., J.-The clerk properly allowed the item for term fees, it appearing that the cause was "necessarily" upon the calendar during the period in question within the definition found in Sipperly v. Warner (9 How. Pr. 332), and the requirements of practice as to service of notice were complied with (See Gowing v. Levy, 22 Civ. Pro. R. 10). I find no reason for a departure from the rule, which obtains in this city, that term fees for terms during which a cause is upon the general calendar, awaiting trial in the usual course, may be taxed by the successful party (Code Civ. Pro., Degener v. Underwood. 3251, subd. 3; Simpson v. Rowan, 13 Civ. Pro. R. 206; II Rumsey's Practice, p. 509). Motion denied. DEGENER v. UNDERWOOD. N. Y. Superior Court, Special Term ; May, 1894. 1. Costs; term fees in court of appeals.] But one term fee can be taxed on an appeal to the court of appeals for each calendar year that the cause is on the calendar of that court, excluding that during which it is argued or otherwise disposed of. 2. The same; damages for delay.] Where the court of appeals, on affirming a judgment, awards a percentage of damages to the respondent, it should be computed upon the amounts of both judgments below, but not upon the accrued interest upon the judgments. Motion for re-taxation of costs. MCADAM, J.-This court in Becker v. Elevated Railway Co. (March, 1892), following 42 How. Pr. 466; 14 Civ. Pro. R. 126, held that but one term fee can be charged on an appeal to the Court of Appeals for each calendar year, and that the term at which the cause is argued or otherwise disposed of must be excluded. The cause went on the calendar in 1893, and was argued in 1894, so that but one term, fee, instead of three, was taxable. Twenty dollars must, therefore, come off the bill. The Court of Appeals affirmed the judgment of the General Term, with costs, and five per cent. damages. This percentage should be computed upon the amount of both the judgments below, but not upon the interest accrued upon the judgments (Adams v. Perkins, 25 How. Pr. 368). The respondent exacted a percentage on the interest as well as the damages awarded by the original judgment, and this excess, after charging interest on the General Term judgment, must be deducted. If the respondent returns to Matter of Owens. the appellant's attorney the twenty dollars aforesaid and the excess of interest as before suggested, the application for a re-taxation will be denied; otherwise it will be granted with costs. Settle order on notice and specify in the order to be settled the specific amounts to be returned. MATTER OF OWENS. N. Y. Common Pleas, Special Term; May, 1894. Costs; special proceeding.] In proceedings to traverse an inquisition in lunacy, where issues have been framed and submitted to a jury, which embraced the whole issue of fact between the parties, the prevailing party is entitled to tax $20 on application for the final order, as on special verdict before argument, and $40 for argument. Motion to re-tax costs. DALY, C. J.-Appeal from taxation of costs by clerk allowing party $20 on application for judgment on special verdict before argument, and $40 for argument. Proceeding to traverse inquisition of lunacy. Issues were framed and submitted to a jury and verdict rendered thereon. The Code allows the costs as taxed where there has been a special verdict and judgment thereon; and it defines a special verdict to be one by which the jury finds the facts only, leaving the court to determine which party is entitled to judgment thereon (Code, § 1186). This was such a case, for the whole issue of fact between the parties was embraced in the questions submitted to the jury, and the court had only to render judgment or grant the final order thereon. The final order recites that the verdict embraces all the material issues in the case. Motion for re-taxation denied. No costs. Robinson v. Klein. ROBINSON v. KLEIN. N. Y. Common Pleas; Special Term, May, 1894. Costs; stay for non-payment of motion costs.] The stay of proceedings on the part of a plaintiff resulting from non-payment of costs awarded defendant upon a motion, extends to the service of a reply to a counterclaim, and defendant does not waive such stay by service of the answer containing the counterclaim before the stay has begun to operate. Motion by defendant for judgment, and a writ of inquiry. Action by Frederick Robinson against Marie Anna Klein, and others. Defendant obtained an order that the complaint be made more definite and certain with $10 costs of motion, and served a copy of the order on plaintiff's attorney with. notice that defendant required the payment of the costs mentioned therein, and would consider all proceedings on the part of plaintiff stayed until they were paid. Within ten days after the service of the copy of such order plaintiff served an amended complaint. On October 23, 1893, defendant served an answer thereto containing a counterclaim. On November 13, 1893, plaintiff served an order extending his time to reply, which defendant returned on the ground that plaintiff's proceedings were stayed because of non-payment of costs. Thereafter, plaintiff served a reply which was returned for like reason. Herbert Grundel, for the motion. Menken Brothers, opposed. GIEGERICH, J.-The plaintiff having failed to pay the King v. Munzer. motion costs, his proceedings were stayed until payment thereof, the stay extending to the service of a reply to the counterclaim pleaded by the defendants (Lyons . Murat, 4 Abb. N. C. 13; S. C., 54 How. Pr. 23). The defendants did not waive the stay by serving an answer to the amended complaint, which was served before the stay began to operate (Code Civ. Pro. 779; Marks v. King, 66 How. Pr. 453). Motion granted, with $10 costs, unless within ten days after entry of the order the plaintiff pay the costs of the former motion and $10 costs of this motion, making in the aggregate $20 costs; and serve his reply herein, leave to serve the same being granted, upon payment of $20 costs within the time above specified. KING v. MUNZER. N. Y. Superior Court; Special Term, May, 1894. Costs; stenographer's fees.] Upon a trial by the court, where the stenographer's minutes are required to aid the court in reaching a decision, it may direct one-half the expense thereof to be paid by each of the parties, and the share paid by the prevailing party may be taxed as a disbursement; and such direction may be made by the court after the trial and for the purpose of affording the basis for such taxation. Limiting Griggs v. Guinn, 29 Abb. N. C. 144, to cases of trials before referees. Motion for an order as to the payment of stenographer's fees. Blumenstiel & Hirsch, for plaintiff. M. L. Erlanger, for defendant. MCADAM, J.-The decision in Griggs v. Guinn (29) Abb. N. C. 144) applies only to trials before referees. |