Dodd v. Curry
New York Supreme Court
Question of Costs referred by the Clerk of Oneida County, for advice.— This was an action brought under the Code of Procedure, for an assault and battery. The cause was noticed for trial by both parties, and was on the calendar at the late, Oneida Circuit.
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Question of Costs referred by the Clerk of Oneida County, for advice.— This was an action brought under the Code of Procedure, for an assault and battery. The cause was noticed for trial by both parties, and was on the calendar at the late, Oneida Circuit. On a regular call of the calendar, the cause was reached on the first day; and the plaintiff not appearing, the defendant’s attorney read his notice and proof of service, and took an order that the complaint be dismissed, pursuant to the 258th section of the code. Upon the adjustment of the costs, the plaintiff’s counsel objected to the…
1Opinion of the Court
Gridley, Justice.
It is argued by the counsel for the plaintiff, that a trial being, according to the definition contained in the 252d section of the code, “ a judicial examination of the issues,” and there having been no examination of the issues, there has been no trial, and of course the trial fee is not allowable.
I apprehend, however, that the definition of a trial, so far as an issue of *124fact is concerned, is merely declaratory of the existing law. Blackstone defines a trial, “ as the examination of the matter of fact in issue,” (3d vol. p. 330.) It is true that the code includes the…
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