Andrews v. Schnitzler
The Superior Court of New York City
Appeal from order denying defendant’s motion for a re-taxation of his costs. The action was at issue, and was noticed for trial at the January term, 1875, by the plaintiff, and placed on the calendar of jury causes for that term, where it remained until 1878. The defendant never noticed the case for trial. ' The complaint was dismissed January' 3, 1882, for want of prosecution, and defendant noticed his costs for taxation.
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Appeal from order denying defendant’s motion for a re-taxation of his costs. The action was at issue, and was noticed for trial at the January term, 1875, by the plaintiff, and placed on the calendar of jury causes for that term, where it remained until 1878. The defendant never noticed the case for trial. ' The complaint was dismissed January' 3, 1882, for want of prosecution, and defendant noticed his costs for taxation. The plaintiff „ objected, before the clerk, to all except the first and fourth items of the bill, on the ground that the action having been dismissed for failure to…
1Opinion of the Court
By the Court.—Freedman, J.
The true construction of the Code in my judgment is, that as long as a cause has been noticed for trial, the party finally pre*174vailing, either at the trial or on special motion for want of prosecution, is entitled to costs for all proceedings after notice of trial, and to the costs for each term, not exceeding five, at which the cause was necessarily on the calendar, though the notice of trial was not given by him, but by his opponent. Neither from the language of the Code nor from any reported case, can I find that a party’s right to the costs in question der pends…
2Cases cited1 opinion
- Tillspaugh v. DickNew York Supreme Court · 1853