Third National Bank v. McKinstry , 9 N.Y. Sup. Ct. 443 ( 1874 )


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  • 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be had without being followed by a conclusion, determination or verdict; e. g., when a jury disagrees, or a juror is withdrawn, or when a complaint is dismissed.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.

Document Info

Citation Numbers: 9 N.Y. Sup. Ct. 443

Judges: Gilbert

Filed Date: 7/1/1874

Precedential Status: Precedential

Modified Date: 2/4/2022