Opinion
March, 1903.
H.A. Robinson (F.A. Gaynor, of counsel), for appellant.
Leon Kronfeld and I. Henry Harris, for respondent.
The action was tried twice. The first trial resulted in a disagreement of the jury, and the second one in a verdict for plaintiff. The clerk taxed two items for costs after notice of trial and two dollars and fifty cents for prospective sheriff's fees, both under objection of the defendant, who applied to the Special Term of the City Court for a retaxation, disallowing one of the items for costs after notice of trial and the sum of two dollars and fifty cents for sheriff's prospective fees. The motion was denied. The defendant appeals.
The Appellate Term of this department has held, in the case of Gilroy v. Badger, 28 Misc. 143, that two items for costs, after notice of trial, may be allowed in favor of the party who is finally successful, where two trials were had, even though one of them, on the short cause calendar, was an unfinished trial by reason of the trial having proceeded for an hour, without being concluded, and the cause, under the rule, was sent back to the general calendar.
The Appellate Division of the Second Department, in a more recent decision, in the case of Seifter v. Brooklyn Heights R.R. Co., 53 A.D. 443, has held that only one such item can be taxed where the first trial resulted in a disagreement of the jury, as did the first trial in the case at bar. The court gave, as a special reason for the rule laid down, the fact that in Kings county the practice requires but one notice of trial, except in case of a new trial, and that there is no new trial where a jury disagrees. The same reasons may be urged in this department. See also the case of Hudson v. Erie R.R. Co., 57 A.D. 99; likewise a decision of the Appellate Division of the Second Department.
We must follow the decision of the Appellate Division of the Second Department, and adopt the view that only one item for costs after notice of trial should have been allowed.
As to the other item to which defendant objected, the statute allowed the sheriff a fee of one dollar and seventy-five cents, and mileage at the rate of ten cents per mile one way. There was no evidence whatever on the taxation of costs, nor is any offered on this appeal, to warrant a conclusion that the mileage would amount to seventy-five cents or to any other sum. It was, therefore, error to allow the extra seventy-five cents for sheriff's fees.
The order must be reversed with ten dollars costs and disbursements, and the bill of costs retaxed as above indicated.
FREEDMAN, P.J., and GIEGERICH, J., concur.
Order reversed, with ten dollars costs and disbursements.