Ellsworth agt Gooding.

proceedings subsequent to the notice of trial and before trial, seven dollars, and for the trial, fifteen dollars." In addition to these allowances, the 308th section authorizes a further allowance in certain cases. When made, this additional allowance becomes as much a part of the costs, as the specific sums mentioned in the 307th section. This extra allowance, when ordered, is to be treated as a part of the costs to which the prevailing party is entitled by law. It is a part of the costs of the trial, and when, as in this case, the costs of the trial are to be paid, as the condition of a new trial, I see no reason why such allowance should not be paid, as well as any other costs accruing upon the trial.

The remaining questions relate to the costs upon the motion for a new trial. The Code provides no specific allowance for any proceeding subsequent to the trial, except upon appeal, and it is contended that the plaintiff, if any costs at all are allowable upon the motion for a new trial, can only have the costs of a mo tion under the 315th section. I understand this section, however, as applicable to an entirely different class of motions.

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By the act of 1840, in relation to costs (Sess. Laws of 1840, page 333, § 15), the court was required to regulate by rule the amount of costs to be allowed upon granting or denying a special motion." In pursuance of this statute, the court, by rule, fixed the amount to be allowed the party making the motion, at ten dollars, and to the party opposing, at seven dollars. In 1847, the rule was so altered as to make the amount in either case, ten dollars. This rule was always understood as applicable to non enumerated motions alone (Thomas agt. Clark, 5 How. Pr. R. 375; Mitchell agt. Westervelt, 6 How. Pr. R. 275). The costs of enumerated motions were specifically provided for in the fee bill of 1840, as they had been by the fee bill contained in the Revised Statutes. Such costs were taxable by items, like other costs in the cause. The 315th section of the Code was, undoubtedly intended as a substitute for the 93d rule of 1847. It was intended to apply to special or non enumerated motions, and to those only. The motion for a new trial, when founded upon a case or bill of exceptions, has never been regarded as such a motion. On the contrary, such a motion has, through all the changes of our practice been uniformly treated as a regular pro

Ellsworth agt. Gooding.

ceeding in the cause, and brought to hearing, like an issue of law, as an enumerated or calendar motion. The 315th section of the Code has no application to such a case, and if no other provision can be found which is applicable, no costs upon such a motion can be allowed.

But I am inclined to think the provision allowing a specific fee for the trial of an issue should be so construed as to entitle the prevailing party to that fee as often as the cause is brought to a hearing upon the merits under the issue that has been made. Thus, if an issue of fact be brought to trial, and, for any cause, a juror is withdrawn, or being unable to agree, the jury is discharged without rendering a verdict, the party who is finally successful would, undoubtedly, be allowed a trial fee, though the trial did not result in a decision. So, if there be a verdict subject to the opinion of the court, or special verdict, the prevailing party is entitled, upon the adjustment of the costs, to a trial fee, both for the circuit and the term of the court when judgment is rendered. And so, when a case or bill of exceptions has been made, and the cause is argued upon the question whether the party who has obtained the verdict shall have judgment or a retrial shall be awarded, I think the same principle should be applied, and the successful party should be allowed a trial fee upon such a hearing. The plaintiff is therefore entitled to a fee of fifteen dollars upon the motion for a new trial made at the special term.

I think, too, the fee of fifteen dollars before argument, and thirty dollars upon the argument of the appeal is allowable. The 349th section of the Code authorizes an appeal to the general term from an order made at a special term "when it grants or refuses a new trial." The appeal in this case was brought under this provision. The 6th subdivision of the 307th section, as it stood when this question arose, gives the fee of fifteen and thirty dollars in all cases of appeal in this court, except "orders granting or denying a non-enumerated motion. We have seen that the motion for a new trial on the merits is not a non-enumerated motion, and the case is, therefore, not within the exception.

The following, therefore, are the costs to which the plaintiff is entitled under the order granting a new trial as modified at the general term.

Van Schaick agt. Winne.

For proceedings subsequent to the notice of trial and before

Three term fees, on motion for new trial, cause on calen

Term fee, cause on calendar upon appeal and not reached, 10.00 Fee before argument on appeal,..........

15.00

30.00

$377-44

The order should be so modified as to direct that a new trial be awarded upon the payment of this sum by the defendant.

SUPREME COURT.

VAN SCHAICK agt. WINNE, EXECutor.

A judge at Chambers has no power to tax or adjust general costs. The clerk is the only officer authorized to do this, and his authority is limited to the costs upon the entry of judgment (Nellis agt. De Forest, 6 How. Pr. R. 413). The amount of costs upon interlocutory proceedings should be fixed in the orders awarding them; or some officer should be designated therein to settle the amount.

Under the Code of 1852 the prevailing party on appeal to the general term from an order granting or refusing a new trial, or sustaining or overruling a demurrer, not being entitled to costs under the 6th subdivision of § 307, as under the Code of 1851 (see Ellsworth agt. Gooding ante p. 1), is still entitled to a trial fee, as well at the general as at the special term, under the 3d sub. (§ 307). And this trial fee may be allowed, as often as the cause has been brought before the court upon the issues made by the pleadings ($15 to plaintiff and $12 to defendant).

Albany Special Term, February 1853. Taxation of Costs. The defendant having demurred to the complaint, the issue of

Van Schaick agt. Winne.

law thus made, was tried, at a special term held in Albany, in June 1852. Judginent was given for the plaintiff, with liberty to the defendant to amend, on payment of costs. The defendant appealed to the general term, where the order was reversed, and judgment given for the defendant, upon the demurrer, with liberty to the plaintiff to amend on payment of costs.

The defendant's attorney thereupon gave notice to the plaintiff's attorney that the costs would be taxed by one of the justices of this court, in the city of New York, at a time and place mentioned in the notice. The costs were taxed pursuant to the notice, without opposition. The venue in the action is in Albany county. The plaintiff moved to set aside the taxation, and also to have the amount of costs, to be paid by him as the condition upon which he was to be at liberty to amend his complaint, fixed by the order of the court.

THOMAS SMITH, for Plaintiff.

L. BIRDSEYE, for Defendant.

HARRIS, Justice.-The taxation of the costs by a judge, at chambers, was clearly a nullity. The clerk is the only officer authorized by the Code to tax or adjust costs. His authority is limited to the taxation of costs upon the entry of judgment (see Nellis agt. De Forest, 6 How. Pr. R. 413). The amount of the costs upon interlocutory proceedings should be fixed in the order which awards them. In cases where a party is required to pay costs, as the condition of granting him a favor, as in this case, the order should specify the amount, or designate some officer to settle the amount. It is usual, in such cases, to provide in the order that the costs shall be fixed by the clerk or by one of the justices of the court, or by a county judge (see Ellsworth agt. Gooding, ante p. 1). The taxation must, therefore, be set aside as unauthorized and void

No provision having been made in the order of the general term for the taxation of the costs to be paid by the plaintiff, as the condition upon which he is allowed to amend, the proper practice would have been to apply at a general term, for a modification of the order, so as to fix the amount of costs, or direct the payment of such amount as should be fixed by some officer designated

Van Schaick agt. Winne.

for that purpose. In this case, however, the counsel have consented that the amount may be fixed in the order made upon the decision of this motion. It only remains, therefore, to determine such amount.

The defendant claims that he is entitled to $45 for the costs upon the appeal. The plaintiff, on the other hand, insists that the defendant is entitled to no costs at all, upon the appeal. Neither party is right. The 6th subdivision of the 307th section of the Code, as amended in 1852, expressly declares that the allowance therein provided "shall not apply to appeals in the cases mentioned in section 349." But for this amendment, the defendant would, without doubt, have been entitled to the amount he claims. Before the amendment, the only exception was, when the order appealed from was made upon " a non-enumerated motion. Accordingly, in Ellsworth agt. Gooding, above cited, where the question arose under the Code of 1851, it was held, that upon an appeal from an order granting a new trial, under the 2d subdvision of the 349th section, the party to whom costs. were awarded, was entitled to the sums specified in the 6th subdivision of the 307th section. Such an appeal, not being a non-enumerated motion," was within the very terms of the provision. But the legislature wisely, perhaps, have seen fit to make all appeals, under the 349th section, an exception from this provision. So that now, unless the case can be provided for elsewhere, no allowance at all can be made in such a case.

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It was held, in Savage agt. Darrow (4 How. Pr. R. 74), that the only costs, to which a party could be entitled upon an appeal under section 349, were the costs allowed by the 315th section, which provides for the costs upon a motion. The decision was made under the Code of 1849. The appeals then allowed by the 349th section, were confined, to non-enumerated motions. The 2d subdivision of the present section, providing for an appeal from an order" which grants or refuses a new trial, or sustains or overrules a de nurrer," was first inserted by the amendments of 1851. Such cases can not, in any proper sense, be regarded as motions, within the meaning of the term, as used in the 315th section.

The fact that the provision in question was inserted among