Mygatt v. Willcox

35 How. Pr. 410

• Court: New York Supreme Court
• Decided: July 15, 1868
• Status: Published

Opinion

Murray, Jr., J.

The opening of the cause, introduction of evidence, and summing up by counsel to the jury, or submitting of the cause to the court or referee on written points and arguments, after the evidence is closed, are parts of the trial of an issue of fact.

Such trial is not completed until finally submitted to the court, referee or jury.

In cases in which more than two days are necessarily occupied in completing the trial, including the preparation and submission of written points or arguments, if that way of submission is agreed upon, the party succeeding is entitled to the additional $10, under subdivision 4 of section 307 of the Code.

In this case it being conceded, that more than two days was necessarily occupied in the trial, if the preparation and submission of written points or arguments are to be included as a part of the trial, there -should be a re-adjustment of the costs in this action, and the clerk of Chenango county should allow plaintiff the additional $10 under said subdivision, formerly rejected by him.