Hamilton v. Butler , 30 How. Pr. 36 ( 1865 )

Robertson, Ch. J.

This action has been three times tried. On the first trial the jury were discharged after all the evidence was admitted, on account of the misconduct of one of their number. On the second the jury disagreed. On the third they found, a verdict for the defendant.

I do not find any provision of law for over five term-fees in any action. (Code, § 307, subd. 7.) The item in the defendant’s bill of costs for an extra term-fee after the cause had been once Med was properly disallowed.

The provision of the (Code, § 307, subd. 4) for all proceedings before a new trial, only applies to cases where a new trial has been “ granted,” not to those where a trial has never been completed; both items in such bill, of costs of proceedings before a new trial, were properly disallowed.

The copies of the notes taken by the stenographer ón the first two trials, although very useful, were not necessaiy disbursements under the 311th section of the Code. Any other notes would have answered the same purpose, and compensation to a private stenographer could- not have been a necessary disbursement ; even the cost of a copy for a judge is made the subject of a special provision. (Code, § 257.) The charge for such copies was therefore properly disallowed.

The Code defines a trial .to-be “ a judicial examination of the issues between the parties.” A trial without a verdict is still a trial, and the labor of counsel is equally great whether the jury agree or not. The opinion of Justice Harris in Ellsworth a. Gooding (4 How. Pr., 4) seems to be very appropriate. Strictly speaking, when a new trial has been granted, the first trial is a nullity, and yet no special provision is made by law for a second trial-fee, although there is one for proceedings anew before such second trial. It may not, perhaps, be a matter of practical consequence to a counsel, as the court would give compensation by an extra allowance in case a cause was tried more than once, as a difficult and extraordinary one, and of course if included in the adjustment of the costs, the court would give so much less compensation as an extra allowance. I think the items of $30 for trial-fees on the first and second, as well as the third trial, should have been allowed, and the bill of costs as adjusted must be reformed in that respect, arid such charges allowed.