
    Louis Steiner and others agt. Catharine Ainsworth.
    
      Costs—Examination of pa/t'ty before trial.
    
    For attending the examination of a party before trial, ten dollars is tax- . able under subdivision 3 of section 307 of the Code, where such party attends ready to he examined, although the examination is then waived and is never had.
    
      Saratoga Special Term, November, 1876.
    There were two actions pending against the same defendant, one in favor of Hecht and others, and the other in favor of Steiner and others.
    The answers had been served, and the plaintiffs in each case obtained an order from the Saratoga county judge to examine the defendant before trial under section 391 of the Code.
    The defendant and the attorneys for both parties resided at Saratoga Springs.
    The orders were returnable at p. m., , 1876, at which time the counsel for both parties and the defendant personally appeared before the county judge and the defendant was sworn and examined in the Hecht case, which was closed within an hour. The plaintiff’s attorney then waived any examination of the defendant in the Steiner case, and the defendant was not sworn or examined in that case, but the proceeding was dropped and the cases were afterward discontinued.
    The defendant’s attorneys claimed ten dollars in each case for attending such hearing before the county judge, and the clerk taxed the same in each bill, and the plaintiff in the Steiner case made a motion to review the adjustment of costs in the nature of an appeal from the allowance of that item.
   E. F. Bullard, for plaintiff,

contended that the - attorney for the defendant was paid by the ten dollars allowed in the other case. Second. That, as no examination had ever been had in the Steiner case, the service was never performed for which the statute allows the ten dollars, and, therefore, it should not he taxed against the opposite party.

A. Pond, for defendant.

The court, Landon, J., held that the ten dollars was properly allowed in each case, and affirmed the adjustment of costs.  