
    Abraham Goodkind, Plaintiff, v. The Metropolitan Street Railway Co., Defendant.
    (Supreme Court, New York Special Term,
    June, 1904.)
    Costs — When a trial occupied more than two days.
    On May 23rd, the attorney for the plaintiff in an action examined and accepted the jury and the attorney for the defendant while examining them on that day stated to the justice presiding that the counsel who was to try the action desired an adjournment until the next day. Thereupon the justice stated in court that the case was to be considered on trial in that part of the court and it appeared in the New York Law Journal of May 24th as on trial in that part of the court on the previous day and as “ unfinished.” The case was tried on May 24th and 25th.
    Held, that the clerk was correct in taxing for the successful party an item of ten dollars costs for a trial occupying more than two days.
    Motion for a retaxation of costs.
    Henry A. Robinson (Lee Parsons Davis, of counsel), for motion.
    Otto Horwitz (Nathan G. Goldberger, of counsel), opposed.
   Geigerich, J.

The defendant insists that the clerk was in error in taxing the item of ten dollars for trial occupying more than two days. The facts are undisputed, and both sides concede that'the question presented is a new one. That the case was actually on trial on the twenty-fourth and twenty-fifth days of May is not disputed, the controversy being as to whether the occurrences on May twenty-third were such as to warrant the conclusion that the case wras on trial upon that day also. The jury was examined by the plaintiff’s attorney, and was accepted on the twenty-third. Thereafter, on the same day, the attorney for the defendant examined the jury, and in the midst of such examination stated to the justice presiding that the counsel who was to try the action was not prepared to go on and desired an adjournment until the next day. The court then stated that counsel in the ease should consider themselves engaged for the trial of the action in that part of the court and the case considered on trial in that part. No objection was made by either party to such ruling. On May 24, 1904, there appeared in the Law Journal the following: “ Supreme Court— Trial Term, Part VII. Before MacLean, Judge — Goodkind v. Met. St. R’y. O. Horwitz for plaintiff; H. A. Robinson for defendant. Case unfinished.” Under these circumstances I think it quite clear that the clerk was right in considering that the trial began on the twenty-third and occupied more than two days.

Motion denied, with ten dollars costs.  