Moore v. Cockroft

9 How. Pr. 479

• Court: New York Supreme Court
• Decided: July 15, 1854
• Status: Published

Opinion

By the court. Dean, Justice.

There was no affidavit of attendance of witnesses such' as the statute requires. The Code has not altered the law on this subject. The affidavit, in order to justify an allowance of witnesses’ fees for travel or attendance, must state positively that the witnesses attended the trial, and the time each attended, and the distance that each necessarily traveled from his "place of residence in order to attend. The Code only* permits necessary disbursements allowed by law, and requires a statement of these in detail. The charge of $12.50, sheriff’s fees, taking and delivering property, must be stricken out under this, as I know of no sucl. allowance to a sheriff.

The Code has defined an issue of law and an issue of fact, the argument of a motion for a new trial on a case, at special term, is neither, and the only way of getting costs for that is an allowance of $10 in the discretion of the court. The $15 must, therefore, be stricken from the bill. But as a motion for a new trial goes upon the calendar, and subdivision eight of § 307 of the Code provides a specific allowance of $10 for every circuit or term at which the cause is necessarily on the calendar, excluding that at which it is tried or heard—this allowance of $10 is not limited to issues of law or fact, but applies also to cases, special verdicts and appeals; this allowance was, therefore, proper. The costs must be corrected in the above particulars.