Fellows v. Sheridan

6 How. Pr. 419

• Court: New York Supreme Court
• Decided: June 15, 1852
• Status: Published

Opinion

Hand, Justice.

This was not an appeal, and the costs of an appeal can not be allowed. The cause was sent to the general term, and no judgment given by a single judge. The Code has made no provision for costs to either side, in these cases, whether the proceedings be before one judge or at a general term. It is not an appeal nor a separate or distinct trial of an issue of law or fact; but rather a continuation of, or an incident to the trial (Code, §§252, 264, 265). And, the fee given for a trial is, ordinarily, the compensation as against the other party, for the services of the attorney and counsel from the commencement of the trial to judgment {id. § 307), except that where a motion for a new trial is made upon a case, &c. I do not see why the court may not allow, not exceeding ten dollars as costs on a motion. That point, however, does not properly arise here; for in this case, there was a motion for a new trial on the ground of newly discovered evidence. The necessary disbursements incident to this proceeding, I think, should also be allowed {id. §311). Motion denied.