Wilson v. White

2 Wend. 265

• Court: New York Supreme Court
• Decided: February 15, 1829
• Status: Published

Opinion

By the Court, Marcy, J.'

In the fee bill, the allowance to counsel is for the trial of a cause, or arguing a demurrer, or a special verdict, or case, or in error, or attending prepared for such trial or argument in pursuance of notice. The same sum is allowed to the attorney for arguing demurrer, special verdict, case, or in error. The alternative of attending prepared, however, is omitted, and probably because it would have been tautologous. The only question is, whether the charge should be made when the attorney does not in fact attend. The court are of opinion that it may be made. The fee bill gives the attorney a fee for arguing a demurrer, &c. although it is well known that an attorney as such never in fact argues a cause in court, none but counsel being heard. The allowance, therefore, is not made for his attendance ; for if he did attend, he could not be heard : it is for preparing the cause for argument, advising with counsel, &c. The costs were therefore correctly taxed in this particular.

There were several other items of less consequence objected to, some of which were sustained ; amongst which was a charge of a brief,and fee on a motion which was not made after notice by arrangement between the parties, and on that account a re-taxation was ordered.