
    Schenck vs. Lathrop.
    In suite commenced since the act of 1840, (Sess. L. 1840, p. 327, § 2,) a counsel fee is not taxable for attending prepared for trial, but only for actually try. ing, &c.
    The question is the same in relation to the argument of a demurrer, bill of excep. tions, &c. in cases within the above act.
    
      J. Crombie, for the defendant,
    moved for a retaxation of costs. The cause was noticed for trial and put over the circuit on the defendant’s motion, upon payment of costs. The plaintiff charged and the taxing officer allowed $5 as a counsel fee for attending prepared to try, &c.
    
      B. D. JYoxon, contra.
   By the Court, Bronson, J.

An attorney's fee has been allowed, although the attorney did.not attend the trial or the argument of the cause. But this was done on the ground that the attorney, as such, never tries or argues a case, and the fee for those services was supposed to be given for preparing the cause for trial or argument. (Wilson v. White, 2 Wend. 265 ; Lamb v. Coe, 19 id. 127.) The revised statutes give a counsel fee (i for the trial of a cause before a jury,” &c. or attending prepared for such trial.” (2 R. S. 632, § 17.) And a counsel fee was allowed, although the cause was not tried. (Bank of Niagarav. Austin, 6 Wend. 548.) But the act of 1840 has dropped the words “ attending prepared,” &c. and only gives a counsel fee “ for the trial of a cause.” (Statutes of 1840, p. 327, § 2.) After this marked- change in the language of the statute, I do not see how a counsel fee can be allowed, except where the cause is actually tried. And the question is the same in relation to the argument of a demurrer, bill of exceptions, Sic. They are all connected together in the same clause with the provision for a trial fee. Counsel get an increased fee under the present law, but they do not get it in all cases where it was formerly given.

Motion granted.  