Cohen v. Cohen

25 N.Y.S. 387, 72 Hun 393, 79 N.Y. Sup. Ct. 393, 55 N.Y. St. Rep. 463

Opinion

PER CURIAM.

By section 3251 of the Code, a trial fee is allowed for the trial of an issue either of law or fact By section 964, an issue of law or fact can only arise where an answer, demurrer, or reply has been served. There being no answer, demurrer, or reply, no issue of law or fact was joined in this case. The application to the court was a mere application for judgment, and the court simply took proof to determine whether the plaintiff was entitled to judgment.

The plaintiff is not entitled to tax a trial fee or costs after ■notice of trial, no such notice being necessary or proper in the progress of the action. The order appealed from, should be reversed, and the clerk’s taxation affirmed, without costs.