
    LENNON v. MacINTOSH.
    
      N. Y. City Court, Special Term ;
    
    May, 1887.
    1. Costs paid upon opening default, taxable.] Upon application of defendant to open a default taken at the trial term, the court opened the default upon condition of payment of §20 costs, and the witness fees, for the day default was taken. Held, that the plaintiff was entitled upon recovery at a trial thereafter, to tax the full bill of costs without deducting the §20 paid to open the default.
    
    2. Costs; trial fees.] The successful party being entitled by the Code to tax a fee for each trial, the plaintiff in such case is entitled to tax two trial fees.
    
    Motion for retaxation of costs.
    
      Defendant having suffered default at trial term, the court granted his application to open the default “ upon condition that within three days after service of a copy of this order he pay to the plaintiff or his attorneys $20 costs, and the witness fees for the day the default was taken,” etc.
    Upon the trial subsequently had, plaintiff had a verdict. Upon taxation of costs, the plaintiff claimed the right to tax two trial fees, but the clerk refused to allow more than one. Defendant claimed that the $20 paid by him upon opening the default should be deducted from the taxable costs, but the clerk refused to do so.
    
      Hyland & Zabriskie, for the plaintiff.
    
      J. Lewis Strahan, for the defendant.
    
      
       The contrary rule is held in the fourth district. In Andrews v. Cross (Sup'm. Ct. Fourth Dist. Sp. T. 1885), 18 Abb. N. C. 92, it was held, where §G5 costs- had been paid to open "default, in compliance with an order opening default upon that condition, that if it was shown by evidence before the taxing officer that the §65 included costs before and after notice of trial and a trial fee. these items should not be relaxed upon final recovery; that it "could not be presumed that the payment of §65 was imposed as a fine or penalty, but rather that it was made up, in part at least, of taxable items for services performed in procuring the judgment set aside.
    
    
      
       Where on first trial jury disagreed and upon second plaintiff recovered, he was allowed two trial fees. Lafond v. Jetzkowitz, 18 Abb. N. C. 87.
    
   McAdam, Ch. J.

The costs originally imposed as a condition of granting the favor then applied for, were allowed by way of penalty for the default suffered and are not to be deducted from the taxable costs to which the successful party ultimately becomes entitled (Cohn v. Husson, 13 Daly, 334, at p. 338; aff’g 3 How. Pr. N. S. 130). As the successful party is entitled'to afee for each trial, the $30 should not have been disallowed.

Retaxation ordered.  