
    Felix Herzfeld et al., Plaintiffs, v. Max Reinach, Defendant.
    (Supreme Court, New York Special Term,
    February, 1899.)
    Costs — Term fees accruing before an amendment of the complaint are not taxable.
    An amendment to a complaint destroys the issne and the prevailing party cannot, in the first department, tax monthly term fees for those months, before the amendment was made, when the case was 1 on the calendar and was not disposed of.
    
      Motion for retaxation of costs.
    S. Feuchtwanger, for motion.
    B. Lewinson, opposed.
   Gildersleeve, J.

This is a motion for the retaxation of costs. The clerk upon the taxation disallowed $40 for term fees, and cut down the referee’s fees from $250 to $180. The parties appear to have stipulated that the referee was to have $20 for every hearing that occupied two hours or upwards, instead of the statutory fee of $10. The hearing of the reference appears to have taken nine days, of which seven, according to- the referee, lasted two hours or more. This would make $160 for the days spent in taking testimony. The referee claims a further sum of $90 for nine days spent in reading over the testimony and making his report. This seems to me to be excessive, as the testimony is not voluminous, nor does it appear that any very difficult questions of law were involved. The referee wrote no opinion, and there is nothing to show that any particular difficulty attended the making of the report. The two days allowed by the clerk seem to be ample time, and the total sum of $180, taxed as referees fees, is sufficient. The motion, therefore, so far as this item is concerned, must be . denied. The clerk also was right in striking off the $40' term fees, although the case may have been four months, exclusive o-f the month at which it was disposed of, on the calendar; for, subsequent to these four months, and just before the case was referred, the plaintiff served an amended complaint. The old issue was thereupon-destroyed, and the four months’ term fees that had previously accrued cannot be allowed. Motion for retaxation denied, without costs.

Motion denied, without costs.  