Third National Bank v. McKinstry

9 N.Y. Sup. Ct. 443

• Court: New York Supreme Court
• Decided: July 1, 1874
• Status: Published

Opinion

Gilbert, J.:

A trial is a judicial examination of the issues between the ■parties.

* Such an examination may be had without being followed by a conclusion, determination or verdict; e. g., when a jury disagrees, or a juror is withdrawn, or when a complaint is dismissed. But when the court refuses to examine the issues, and, of its own motion, sends the case to a referee, it would be a stretch of common sense and of law to hold that there had been a trial. What issue of law or of fact was judicially examined by such a proceeding ? And yet it is only for a trial, so defined, that a trial fee is allowed.'† None of the cases cited by the appellant support his appeal.

We think the order appealed from should be affirmed.

Order affirmed.

Code, § 352.

Code, § 307, sub. 4.