Ehlers v. Willis
New York Marine Court
The defendant offers to pay the plaintiff’s demand and costs and applies to be relieved from the litigation on paying the same into court, the plaintiff having refused to accept the amount tendered. The real contention, however, grows out of the dispute whether the plaintiff is entitled to a trial fee under the following circumstances: The case appeared upon the day calendar Hay 23, 1882, and both parties answered ready.
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The defendant offers to pay the plaintiff’s demand and costs and applies to be relieved from the litigation on paying the same into court, the plaintiff having refused to accept the amount tendered. The real contention, however, grows out of the dispute whether the plaintiff is entitled to a trial fee under the following circumstances: The case appeared upon the day calendar Hay 23, 1882, and both parties answered ready. Before the cause was reached for trial it was marked “Inquest” in consequence of a proposition for settlement made by the defendant. The inquest, however, has not been taken.
1Opinion of the CourtMcAdam, J.
It is clear that no trial has been had within the meaning of that term as employed in the Code (28 How. Pr., 184; 2 Hun, 443; 5 T. & C., 52; 35 How., 410; 10 Bosw., 622). The issues have not been examined by the court and remain upon the calendar undisposed of. The plaintiff for this reason is not in a position to enter judgment, nor caía he do so until the issues have been finally disposed of in one of the modes allowed by law. A party may, therefore, settle or discontinue an action while upon the day calendar, and before .it is reached for trial, without paying a trial fee (Sutphen agt.…
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- Mora v. Great Western InsuranceThe Superior Court of New York City · 1863
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- Allen v. StoneNew York Supreme Court · 1850
- Jones v. CaseNew York Supreme Court · 1869
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