Legal Opinion

Muller v. Higgins

The Superior Court of New York City

Decided December 15, 1872PublishedCited by 1 opinion

Appeal from taxation of costs. This action was brought by Adrian H. Muller and others against Elias S. Higgins. On the rendering of the verdict the defendant moved for a new trial upon the judge’s minutes, under section 264 of the Code. The motion was denied. Upon the taxation of the plaintiffs’ costs, the clerk disallowed any other than a motion fee for the motion for a new trial, and the plaintiff appealed.

1Opinion of the CourtMonell, J.

The construction of this court in Scudder v. Gori (28 How. Pr., 155,) of section 307 of the Code, was, that a motion for a new trial upon a case, although necessarily made at the special term, carried the same costs as upon an appeal from a judgment which could only be heard at the general term. Such motion for a new trial is named in express terms in the section and is given the same costs as upon an appeal.

But a motion for a new trial made upon the judge’s minutes is not a motion on a case; and although the grounds of the motion are the same, nevertheless, no case is required to be prepared…

2Cases cited3 opinions

  1. Place v. Butternuts Woolen & Cotton Manufacturing Co.New York Supreme Court · 1864
  2. Scudder v. GoriThe Superior Court of New York City · 1864
  3. Mechanics' Banking Ass'n v. KierstedThe Superior Court of New York City · 1855

3Cited by1 opinion

  1. Naugatuck Cutlery Co. v. RoweNew York Supreme Court · 1878

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