Weiss v. Morrell

28 N.Y.S. 61, 7 Misc. 541, 58 N.Y. St. Rep. 319

Opinion

DALY, C. J.

■ The contention of defendants, is that plaintiffs were not entitled to $30 trial fee for their inquest, because there was no trial of an issue of fact; there being no denial in the answer, and the affirmative defense therein set up not having been tried, and a trial fee only being allowed upon the trial of an issue of fact. Code, § 3251, subd. 3. It is argued that, a plaintiff being entitled only to a verdict, decision, or judgment (Code, § 990), and these plaintiffs, not being entitled to a verdict or decision, because there was no issue tried, were not entitled to a trial fee in taking judgment. An issue of fact was presented by the pleadings upon the defendants’ plea of recoupment which was to be deemed controverted by plaintiffs. Code, §§ 522, 964. This issue was disposed •of by the judgment taken by the plaintiffs on defendants’ default, and such judgment was conclusive against defendants’ claim. Embury v. Conner, 3 N. Y. 522. An issue is tried and determined whether the party holding the affirmative appears or not, and the successful party is therefore entitled to his trial fee. A trial fee is always allowed the plaintiff upon an inquest. Hawley v. Davis, 5 Hun, 642; Wessels v. Carr (City Ct. N. Y.) 6 N. Y. Supp. 525; Pomeroy v. Hulin, 7 How. Pr. 161. A trial fee is taxable where the complaint is dismissed on failure of plaintiff to appear. Dodd v. Curry, 4 How. Pr. 123. Also where the cause is discontinued while on the day calendar, although it had not been actually called. Duperey v. Phoenix, 1 Abb. N. C. 133, note. In none of these cases-was there a trial other than such as was had in this case. The orders appealed from must be affirmed. All concur.