
    NAUGATUCK CUTLERY CO. v. ROWE.
    
      N. Y. Supreme Court, First Department;
    
    
      Special Term, November, 1878.
    Motion nob New Trial on Judge’s Minutes. — Costs.—Code on Civ. Pro. § 999.
    On motion for new trial made on the judge’s minutes, under section 999 of the Code of Civil Procedure, without a case, costs as for a motion may be allowed by’the judge granting or denying such motion, in his discretion ; but the successful party is not entitled to a trial fee thereon, as for the trial of an issue of fact.
    Appeal from taxation of costs.
    On the rendering of the verdict, the defendants, Daniel C. Rowe, Sumner Babcock and William Post, moved for a new trial upon the judge’s minutes, under section 999 of the Code of Civil Procedure, The motion was denied. Upon taxation of the plaintiff’s costs the clerk allowed for “ motion for new trial on minutes, $30,” and the defendant appealed.
    
      Winfield, Leeds & Morse, for the defendants.
    I. Plaintiff’s right to recover costs depends wholly upon the statute, since no costs could be recovered at common law (Supervisors of Onondaga v. Briggs, 3 Denio, 173).
    II. Costs must be recovered, if at all, underand by virtue of the statute in force at the time the verdict is rendered (Jackett v. Judd, 18 How. Pr. 385 ; Supervisors of Onondaga v. Briggs, 3 Denio, 173; People v. Herkimer Com. Pl., 4 Wend. 210; Scudder v. Gori, 28 How. Pr. 155).
    III. A motion for a new trial on the judge’s minutes, under section 999, is not a trial within the meaning of section 252 of the old code, since that section has been repealed, and section 965, which has been substituted, does not give a specific definition of a trial. The case of Muller v. Higgins, therefore, which was decided on the theory that the motion was a trial within the meaning of the repealed section (§ 252), has no application under the Code of Civil Procedure.
    IY. Under séction 999, the application for a new trial on the judge’s minutes is an ordinary motion, upon which an order may be entered, and an appeal taken, upon a “ case,” in the usual manner.
    
      Wingate & Cullen, for plaintiffs,
    Claimed the motion was a trial of an issue of fact, for which a trial fee of $30 was allowed by section 307 of the Code of Procedure ; and cited Muller v. Higgins, 13 Abb. Pr. N. S. 297; S. C., 44 How. Pr. 224.
   Lawrence, J.

It is not necessary on this motion to inquire whether the case of Muller n. Higgins (44 How. Pr. 224), was correctly decided. This motion must be disposed of under the provisions of the Code of Civil Procedure, the verdict having been rendered in October last. Section 999 of the present code treats the motion made upon a judge’s minutes for a new trial, where no formal case has been prepared, simply as a motion; and it would seem to follow, that on the granting or the denial of such motion, only motion costs can be allowed. The granting of the costs on a motion is in the discretion of the judge before whom the cause was tried. The allowance of a trial fee by the clerk was therefore erroneous, and the fee must be stricken out. Leave, however, is granted to apply to the justice who tried the cause, for costs of motion.  