Livingston v. Vielle Montagne Zinc Mining Co.

2 Abb. Pr. 255, 11 Duer 681

Opinion

Duer, J., {orally).

The defendants cannot be allowed the term fees for April and May, since had the cause been reached at either of those terms it could not have been tried. The stipulation fixing the date of issue only availed to give the cause a preference on the calendar, if when reached it was in a state to be tried, but did not give either party any right to fees for a term at which no trial could be had. Even if the plaintiffs had prevailed, they would not have been entitled to term fees for April and May. A party has no right to term fees until a cause is actually at issue, whether the date of the issue be fixed by stipulation, and the cause be placed on the calendar, or not.