Weiss v. Morrell — 7 Misc. 541

Majority

p. 541

Ignatz Weiss et al., Respondents, v. Joseph B. Morrell et al., Appellants.

(New York Common Pleas—General Term,

March, 1894.)

Headnote

An issue is tried and determined whether the party holding the affirmative appears or not, and the successful party is entitled to atrial fee in either event.

The answer in an action did not deny the allegations of the complaint, but set up damages which the defendant claimed to recoup against any demand proved on the trial. Defendants failed to appear on the trial, an inquest was taken and plaintiffs entered judgment thereon. Held, that an issue was presented by defendants’ plea of recoupment, which was disposed of by the judgment, and that the plaintiffs were entitled to tax a trial fee.

p. 542

Appeal by defendants from an affirmance by the General ¿Term of the City Court of an order denying their motion to set aside the judgment, and from an order affirming the clerk’s adjustment of costs allowing the plaintiffs, upon taxation, a trial fee of thirty dollars for an issue of fact.

The complaint was for work, labor and services in making up materials furnished by defendants into uniforms at the ■agreed price of $1,856.70. The answer set up that the work was not done in a good and workmanlike manner; that plaintiffs failed to return surplus cloth to the damage of defendants to the amount of any demand of plaintiffs which might be proved on the trial. The action having been regularly reached upon the calendar, the defendants failed to appear, their default was entered, an inquest taken and plaintiffs entered judgment.

Charles Edward Souther, for appellants.

Alfred B. Jcmorower and Louis Lowenstein, for respondents.

The contention of defendants is that plaintiffs were not entitled to thirty dollars 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, § 980), 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

p. 543

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, 6 N. Y. Supp. 535 ; 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 . 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.

Bisci-ioff and Pryor, JJ., concur.

Orders affirmed, with costs.

Cases cited

Pomeroy v. Hulin & Beebe 7 How. Pr. 161 N.Y. Sup. Ct. p. 543
Dodd v. Curry 4 How. Pr. 123 N.Y. Sup. Ct. p. 543