(85 Misc. Rep. 473)

#### PATRICK v. NEW YORK STATE RYS.

(Oneida County Court.

May, 1914.)

Costs (§ 149*)—Taxation—Ebbs.

Where the trial was not completed owing to a juror’s illness occurring after the summing up and before the charge, plaintiff, who again noticed the cause for trial and obtained a verdict, was entitled to tax two fees “after notice and before trial,” under Code Civ. Proc. § 3251.

[Ed. Note.—For other cases, see Costs, Cent. Dig. § 576; Dee. Dig. § 149.*]

Action by Ralph Patrick against the New York State Railways. Review of taxation of costs. Disputed item of costs allowed.

E. L. Smith, of Utica, for plaintiff.

D. E. Meegan, of Utica, for defendant.

*

For other cases see same topic *&*§ number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes

HAZARD, J.

This case has been twice tried. The first trial was not completed owing to the sickness of a juror, occurring after the case had been summed up and before the jury were charged. The case was again noticed for trial and put upon the calendar of a subsequent term, and tried, resulting in a verdict for the plaintiff. Plaintiff has taxed two items of costs after notice and before trial at $15 each, and two trial fees at $30 each. Defendant brings the matter here, claiming that the second item of costs “after notice and before trial” should not be allowed.

The question presented seems to be one with reference to which there appears to be considerable diversity of judicial opinion. A leading case on the subject is that of Seifter v. Brooklyn Heights R. R. Co., 53 App. Div. 443, 65 N. Y. Supp. 1123, where it is said:

> “The better opinion seems to favor the allowance of but one sum for costs after notice of trial and before trial.”

This case is followed without comment in Hudson v. Erie R. R. Co., *57*App. Div. 98, 68 N. Y. Supp. 28, in Hakonson v. Metropolitan St. R. Co., 40 Misc. Rep. 182, 81 N. Y. Supp. 662, in Berrent v. Simpson (Sup.) 115 N. Y. Supp. 693, and in Chism v. Smith, 130 N. Y. Supp. 881. It is to be observed, however, that the Seif ter Case is decided in part at least upon the fact that as is therein stated, “The venue in this case is laid in Kings county, where the calendar practice requires but one notice of trial,” and all of the above cases except the last arose in counties where that rule prevails.

The code provision involved is found in section 3251, and which awards “to either party: For all proceedings after notice of trial, and before trial, except as otherwise prescribed in this article, fifteen dollars.” The exception referred to is in cases where a new trial is had, pursuant to an order granting the same, etc. Notwithstanding the interpretation of the above-quoted code provision, there is much authority to the contrary, although it must.be conceded that none of it has the authority and weight of either the General Term or the Appellate Divi*929sion. It was held in Spring v. Day, 44 How. Prac. 390, that under the Code provision above quoted a party might tax two items of $15 each, for costs after notice and before trial, where the jury had disagreed on the first trial and the *defendant is obliged to renotice the case for trial.*To the same effect is Zelmanovitz v. Manhattan R. Co., 33 N. Y. Supp. 583; Gilroy v. Badger, 28 Misc. Rep. 143, 58 N. Y. Supp. 1106, in which case it is also said: “In numerous instances in which a juror had been withdrawn in the progress of a trial it was for the purpose of taxation of costs deemed a trial,” with numerous citations, a statement which is of interest here, as the situations are apparently analogous. See, also, Kummer v. Christopher & T. St. R. R. Co., 12 Misc. Rep. 387, 33 N. Y. Supp. 581.

It thus appears that the apparent conflict of authority upon the subject in question may be reconciled; as those against the proposition are in counties where only one notice of trial need be served, whereas a different rule seems to apply in counties where a notice of trial is required to be served for each and every term. It does not, however, occur to me that the distinction is a particularly sound one. Costs are designed to compensate a party for the services of his attorney in the case. Every lawyer of any experience whatever knows that there are many “proceedings after notice and before trial,” including interviewing and subpoenaing witnesses, taking the necessary steps to get the case upon the calendar and also upon the day calendar, and in attendance upon the day calendar, all of which involve in many cases a very substantial amount of services, compared with which the mere item of serving a notice of trial is negligible. It does not seem to be disputed in this case that plaintiff is entitled to two trial fees, and it seems to me that he is just as clearly entitled to two fees after notice and before trial. It seems to me that the two necessarily go together, and that one is as well earned as the other. It may be that in counties where only one notice of trial is served, a highly technical construction of the code provision above quoted will preclude the taxation of more, than one item of $15 in any and every event; but apparently the rule does not necessarily apply in this county, and, as I do not regard it as a just one, I think the item in dispute should therefore be allowed. So ordered.

Ordered accordingly.