
    N. Y. SUPERIOR COURT.
    Adrian H. Muller and others agt. Elias S. Higgins.
    
      Special Term,
    
    
      December, 1872.
    On a motion for a new trial on the judge's minutes, no costs as for a motion can be allowed. The prevailing party ts entitled only to a trial fee for the trial of an issue of fact.
    Appeal from the taxation of costs. •
    On the rendering of the verdict the defendant moved for a new trial upon the judge’s minutes, under section 264 of the code. The motion was denied. Upon the taxation of the plaintiff’s costs, the clerk disallowed any other than a motion , fee for the motion for a new trial, and the plaintiff appealed.
    Mr. Foster, for appellant.
    
    Mr. Babcock, opposed.
    
   Monell, J.

The construction of this court in Scudder agt. Gori (28 How., 155), of the 807th section of the code was, that a motion for a new trial upon a case, although necessarily made at the special term, carried the same costs, as upon an appeal from a judgment which could only be heard at the general term. Such motion for a new trial is •named in express terms in the section, and is given the same costs as upon an appeal.

But a.motion for a new trial made upon the judge’s minutes is not a motion on a case; and although the grounds of the motion are the same, nevertheless, no case is required to be prepared, or settled, or used on the motion.

The construction, therefore, of the section in Scudder agt. Gori will not admit of its coming or being extended to any other motion for a new trial, than such as is made upon a case regularly made and settled.

Neither in my judgment is the plaintiff entitled to the fee prescribed for the trial of an issue of law. A motion of this character does not seem to me to be within the code’s definition of a trial—namely, a judicial examination of the issues between the parties ” (§ 252).

But as this court at general term, many years ago, in an opinion which is fortified by several decisions of other courts (Mechanics Banking Ass. agt. Kiersted, 10 How., 400), and subsequently sustained in the general term of the supreme court (Place agt. The Butternuts W. & C. Co., 28 How., 184), held, that a motion for a new trial on a case was a trial within the definition alluded to, I am constrained to apply the principle to a like motion, made upon the judge’s minutes. There is no difference between the motions as respects this question.

If one is a trial, the other is equally so.

I am not aware of any subsequent decision or amendment of the code, which deprives the case referred to of its authority.

The plaintiff is entitled to a trial fee for the trial of an issue of fact, but not to any costs as for a motion.  