
    SUPREME COURT
    Buckingham agt. Minor.
    Where the terms for vacating a judgment, and letting the defendant in to defend, were stated to be “ all the costs of the hearing before the referee in this action, and of the proceedings subsequent thereto ”—held, that the sum of $10, allowed by the Code, for aM proceedings after notice and 6efore trial, was properly taxable.
    
      New - York Special Term, October, 1859.
    Appeal from adjustment of costs.
   Davies, Justice.

.The only item left undisposed of on the argument of the appeal from the adjustment of the costs in this action is that of $10, being the sum allowed by the Code for all proceedings after notice and before trial.

The judgment was vacated and the defendant let in to defend, upon condition that he pay “ all ’the costs of the heari¿|>' before the referee in this action, and of the proceedings subsequent thereto.” The fee of $10 is provided as a compensation for the attorney’s services intermediate the notice of trial and the trial, such as the subpoenas and tickets, their service, and procuring the attendance of witnesses as well as brief for counsel, and on the part of the plaintiff, the copy of the pleadings for the court.

In Dewey agt. Stewart (6 How. P. R. 465), the superior court say they they fully agree with Mr. Justice Hand, of the supreme court (Mitchell agt. Westervelt, 6 How. P. Rep. 265), that the sum provided by the Code (now $10) is a part of the costs of the trial, term or circuit, and must be paid as such by the party who obtained a postponement of the trial on the payment of costs, or is subjected to the payment of the costs of the term or circuit for any cause. The same points have been ruled in the same way by Justices Willard and Parker. (4 How. P. R. Rep. 304; 5 id. 336.)

The $10 are, therefore, to be regarded as a part of the costs of the hearing before the referee. The allowance is for the services consequent upon, and preliminary to that hearing, and thus manifestly intended to be paid as a portion of the costs of the hearing. Such, I think, is the true construction of the order made in the light of these decisions, and that sum should consequently be allowed to the plaintiff, as part of the costs to. bo paid by .the defendant, on condition of opening the judgment and permitting him to come in and defend the action. The costs will accordingly be adjusted on the principle here stated and in conformity with the opinion announced on the 'argument.  