
    Boynton vs. Dormott.
    The charge of fifty cents for proof of service of notice of trial and inquest, and the like sum for proof of service of copy, costs, and notice of taxation, are not taxable, being unnecessary.
    The charge of 12 1-2 cents for taking affidavits to proof of service, is embraced in the fifty cents, and is not taxable as a separate item.
    'The clerk of the circuit is not entitled to charge for filing note of issue as a distinct charge,
    ; it being embraced in the twenty-five cents allowed for every cause noticed, &c., and for . entering on calendar.
    The clerk is not entitled to the fee of fifty cents, unless the cause is tried. The sheriff is entitled to that fee, in all cases where the cause is noticed for trial, or placed on the calendar.
    The charge for attorney and counsel attending, prepared for trial, is taxable. The case of Schenck v. Lathrop, 3 Hill, 449 ; Wilson v. White, 2 Wend. 265, and Lamb v. Coe, 19 Wend. 127, explained.
    The attorney’s fee of one dollar for arguing every special motion, applies only to motions at ■ a general or special term.
    . Costs.-—This cause was noticed for trial at the last Essex circuit, and the trial was put over the circuit on the Defendant’s application, upon .payment of costs. The Plaintiff’s attorney inserted in his bill, among other things, the following items:
    
      Notice of trial and inquest, 25; copy and service, 25, . .50
    Proof of service, 50; note of issue, 25, ... .75
    Clerk filing, 6 ; entering cause on calendar, 25, . . .31
    Sheriff’s and clerk’s fees,......1.00
    Proof of attendance of witnesses, 50; oath, 12 1-2, . .62 1-2
    Attorney and counsel attending prepared to try, . . 6.00
    Opposing motion to put off trial, .... 1.00
    Proof of service of copy costs, and notice of taxation, .50
    Oath to do. do. do. do. . .121-2
    Dr. Costs, 50; two copies, 50, .... 1.00
    Clerk for certified copy order, putting off trial, . .12 1-2
    The other items in the bill were not objected to. The question whether the foregoing charges are properly taxable, was submitted to Willard, Justice, at Chambers.
    Pond, for the Plff.
    
    Ross, for the Deft.
    
   Willard, Justice.

The fee bill does not give any thing for notice of trial and inquest, in addition to the copy and service, but it allows 25 cents only for “ every notice, copy, and service thereof.” (2 R. S. 725, 3d ed.) The proof of service of notice of trial is unnecessary. The Plaintiff moves the trial at the circuit at his peril, and the presiding judge is governed by the calendar. No evidence that the cause has been noticed for trial is required. The clerk is not entitled to any thing for filing a note of issue as a distinct charge. It is embraced in the 25 cents allowed Mm for every cause noticed for trial or argument, and entering the same on the calendar. (2 R. S. 726, 3d ed.) The clerk is not entitled to the fee of 50 cents, unless the cause is tried. (Ibid.) It is not given to him when the cause is put off without a trial. The sheriff is entitled to the fee of 50 cents for summoning a jury to attend the court in each cause noticed for trial, or placed on the calendar thereof for trial. (2 R. S. 736, 3d ed.) The oath to the proof of the attendance of witnesses, is embraced in the 50 cents given specifically for that service, and is not taxable as a distinct item.

The charge for attorney and counsel attending prepared for trial, are both taxable, since the act of 1844, chapter 273. That act altered the phraseology as to counsel, which was contained in the act of 1840, page 327, § 2, under which it was held in Schenck v. Lathrop, 3 Hill, 449, that a counsel fee was not taxable for attending prepared for trial. The same case, however, holds, that- an attorney's fee for attending prepared, is allowable, in conformity to Wilson v. White, 2 Wend. 265, and Lamb v. Coe, 19 Wend. 127. The proof of service of copy costs, and notice of taxation, is unnecessary. No other copy costs is taxable than such as is actually served upon the opposing party, or delivered to him, or his attorney, upon request. (2 R. S. 725, 3d ed.) A certified copy of the order, putting off the trial, is unnecessary, and is therefore not taxable.

The Plaintiff’s attorney is not entitled to the fee of one dollar for opposing the motion to put off the trial. The charge in the fee bill, (2 R. S. 724, 3d ed.) of $1, for arguing every special motion, applies only to motions at a general or special term.  