
    William Young et al., Administrators, etc., Plaintiffs, v. The Syracuse, Binghamton and New York Railroad Co., Defendant.
    (Supreme Court, Onondaga Special Term,
    May, 1901.)
    Costs — Where non-suit is' reversed and judgment absolute is given tjie plaintiffs in the Court of Appeals — Code C. P., §§ 3338, 3356.
    Only one trial fee can be taxed by the plaintiffs where they are non-suited on the trial, the decision reversed by the Appellate Division, the latter decision affirmed by the Court of Appeals and judgment absolute there given the plaintiffs on a stipulation to that effect. In such case a subsequent assessment of damages is not a trial, but clerks’, jurors’ and witnesses’ fees are taxable thereon.
    This action was brought to recover damages for the alleged negligence of defendant, resulting in the death of plaintiffs’ intestate. The plaintiffs were nonsuited at the Trial Term, which decision was reversed by the Appellate Division. Defendant then appealed from the judgment entered upon the latter decision to the Court of Appeals, giving a stipulation for judgment absolute. The latter court affirmed the decision of the Appellate Division, ordering judgment absolute for plaintiffs, with costs. In accordance with such decision and judgment plaintiffs had an assessment of their damages at the Trial Term, being allowed $5^000.' They have taxed as part of their costs in this action for and on account of such assessment of damages a trial fee and certain clerics’, jurors’ and witnesses’ fees. This motion is made by defendant for a retaxation and disallowance of all of said items.
    W. S. Jenney, for motion.
    George W. O’Brien and L. P. Lang, opposed.
   Hiscock, J.

The trial fee of thirty dollars must be disallowed. There has been only one trial of the action and for that plaintiffs, without objection, have been allowed to tax a trial fee. The assessment of damages is not a trial, or, as claimed, an inquest so as to allow plaintiff to tax a trial fee. The other disbursements are allowed and the motion to disallow them'denied. I have no doubt that their allowance is amply provided for by the provisions of sections 3228 and 3256, Code.

Ordered accordingly.  