Naugatuck Cutlery Co. v. Rowe

5 Abb. N. Cas. 142

Opinion

Lawrence, J.

It is not necessary on this motion to inquire whether the case of Muller n. Higgins (44 How. Pr. 224), was correctly decided. This motion must be disposed of under the provisions of the Code of Civil Procedure, the verdict having been rendered in October last. Section 999 of the present code treats the motion made upon a judge’s minutes for a new trial, where no formal case has been prepared, simply as a motion; and it would seem to follow, that on the granting or the denial of such motion, only motion costs can be allowed. The granting of the costs on a motion is in the discretion of the judge before whom the cause was tried. The allowance of a trial fee by the clerk was therefore erroneous, and the fee must be stricken out. Leave, however, is granted to apply to the justice who tried the cause, for costs of motion.