Forbes v. Locke

8 How. Pr. 218

• Court: New York Supreme Court
• Decided: April 15, 1853
• Status: Published

Opinion

Welles, Justice.

I think under the circumstances of this case, the defendant, Chapman, was entitled to the additional ten dollars claimed. The seven dollars, given by the 2d subdivision of section 307, of the-Code, to the defendant, for all-proceedings subsequent to notice of trial, and before the trial, are intended to pay him for preparing the cause for trial, embracing every thing to be done by the party and his attornies and counsel after notice of trial and before the circuit. As soon as the circuit has commenced, the attorney becomes entitled to ten dollars, under subdivision 8 of the same section, provided the cause is necessarily on the Calendar, and, either not reached, or postponed. In this case there was a bona fide intention to try the cause, which was not done at the first call of the Calendar, but would have been done at the second call, except for the stipulation of the attornies, to refer the question as stated.

I think the claim of the defendant to this additional ten dollars is within, the intention at least, of subdivision 8. If necessary to sustain it, I think the case may be regarded as having been postponed from the first to the second call of the Calendar; or, if not postponed, that at the time of the tender it was not reached. True, it had been once reached, but was expected to be again, but was not again reached until after the discontinuance and tender. In Minturn agt. Main, (2 Sanf. Supr. C. R. 737,) the court say: “ It is the practice to construe the allowance of counsel fees, for attendance at the terms, in a liberal way.”

My opinion is that the defendant is entitled to the ten dollars in question.

Costs.