Bermont v. Serge Elevator Co.

199 Misc. 825, 106 N.Y.S.2d 933, 1951 N.Y. Misc. LEXIS 2262

Opinion

Byrnes, C. J.

Plaintiff failed to appear upon the call of the trial calendar and upon defendant’s motion in open court at that time the action was dismissed. The question for determination is whether defendant should be permitted to tax $30 costs, pursuant to paragraph j of subdivision 3 of section 1504 of the Civil Practice Act, which reads in part: “ For the trial of an issue of fact, thirty dollars ”. “ Trial ” is defined in all standard legal dictionaries as an examination before a com-potent tribunal, according to the law of the land, of the facts or law put in issue in a cause, for the purpose of determining such issue. While there are early cases which would support a different view, the present tendency of the courts is correctly stated in Wait’s New York Practice (4th ed., Vol. 4, p. 509) as follows: “ the tendency of the courts is to disallow a trial fee where there has been a dismissal or discontinuance of the action before any trial has been begun. ’ ’

I hold that there has not been a “ trial'of an issue of fact ” herein, and the item of $30 is disallowed (cf. Gallagher v. Surpless, 177 App. Div. 793, and Harris v. Pudney, 93 Misc. 470; see, also, Wrobel v. Call, 142 Misc. 610). The motion is therefore granted, the item of $30 is stricken from the bill of costs, and the clerk of the court is directed to make an appropriate entry to that effect. ■