Considerant v. Brisbane

1 Bosw. 644

Opinion

Bosworth, J.

For the labor of examining the amended complaint, and determining the nature of the pleading, to be interposed by way of answer, and of drawing, copying, and serving it, and of other proceedings before notice of trial, it is as just to allow $10 as for performing similar services, in relation to the original complaint. Allowing it, is not paying for the same services twice: The services are, as truly, separate, and different, as if performed in different actions.

For like reasons, the item of $10, for proceedings subsequent to notice of,, and before trial, was properly allowed. As to this item, the taxation is confirmed, and the item of $10, for proceedings before notice of trial, must also be allowed. The rejection of it was erroneous. A different rule may be applicable when there has been but one actual trial, as in Perry v. Livingston, 6 How. Pr. R. 404, and Jackson v. McBurney, id. 408:—In the present case, there have been two actual trials, of issues at law, one upon a demurrer to the original complaint, and the other upon a demurrer to an amended complaint. Both items are allowable.