
    MULLER against HIGGINS.
    
      New York Superior Court; Special Term,
    
      December, 1872.
    Costs.—Motion for a New Trial on the Minutes.
    Ou a motion for a new trial made on the judge’s minutes under section 264 of the Code,—as on a motion upon a case,—the successful party is entitled to a trial fee for the trial of the issue of fact, hut not to any costs as for a motion.
    
      The cases of the Mechanics’ Banking Association v. Kiersted, 10 How. Pr., 400, and Place v. Butternut, &c. Co., 28 Id., 184, followed.
    Appeal from taxation of costs.
    This action was brought by Adrian H. Muller and others against Elias S. Higgins.
    On the rendering of the verdict the defendant moved for a new trial upon the judge’s minutes, under section 264 of the Code. The motion was denied. Upon the taxation of the plaintiffs’ costs, the clerk disallowed any other than a motion fee for the motion for a new trial, and the plaintiff appealed.
    
      Mr. Foster, for the appellant.
    
      Mr. Babcock, opposed.
   Monell, J.

The construction of this court in Scudder v. Gori (28 How. Pr., 155,) of section 307 of the Code, was, that a motion for a new trial upon a case, although necessarily made at the special term, carried the same costs as upon an appeal from a judgment which could only be heard at the general term. Such motion for a new trial is named in express terms in the section and is given the same costs as upon an appeal.

But a motion for a new trial made upon the judge’s minutes is not a motion on a case; and although the grounds of the motion are the same, nevertheless, no case is required to be prepared or settled or used on the motion.

The construction, therefore, of the section in Scudder v. Gori, will not admit of its covering or being extended to any other motion for a new trial than such as is made upon a case regularly made and settled.

Neither, in my judgment, is the plaintiff entitled to the fee prescribed for the trial of an issue of law. A motion of this character, does not seem to me, to be within the Code’s definition of a trial, namely, “ a judicial examination of the issues between the parties” (§ 252).

But as this court at general term many years ago, in an opinion which is fortified by several decisions of other courts (Mechanics’ Banking Ass. v. Kiersted, 10 How. Pr., 400), and subsequently sustained in the general term of the supreme court (Place v. Butternut, &c. Co., 28 How. Pr., 184), held, that a motion for a new trial on a case was a trial within the definition alluded to, I am constrained to apply the principle to a like motion made upon the judge’s minutes. There is no difference between the motions as respects this question. If one is a trial, the other is equally so.

I am not aware of any subsequent decision or amendment of the Code which deprives the case referred to of its authority.

The plaintiff is entitled to a trial fee for the trial of an issue of fact, but not to any costs as for a motion.  