
    HENDRICKS a. BOUCK.
    
      New York Common Pleas; General Term,
    
    
      December, 1855.
    Costs. — Teem Fees — WheN Taxable.
    On costs of amending after decision upon demurrer, the successful*party is entitled to charge for proceedings before notice of trial.
    In no instance can a term fee be charged in the Common Pleas as costs on a demurrer, while the whole calendar is disposed of at every term. If parties do not bring their cases to argument, they lose the costs of the term.
    Appeal from the taxation of costs by a judge at chambers.
    It appeared upon the papers that this action was brought against the defendant Bouck as surety, and the other defendants as principals, to recover rent due upon an ordinary landlord and tenant agreement. The defendant Bouck appeared separately and demurred to the complaint.
    
      The issue of law was noticed for trial by the plaintiff for September term, 1854, and each subsequent term to June, 1855, inclusive, when it was tried at special term. The court gave judgment for the defendant on the demurrer, but with liberty to the plaintiff to amend on judgment of costs. The defendant’s attorney presented a bill in -which he charged—
    “ For all proceedings before notice, . . . o o Ox
    “ Subsequent proceedings before trial, . . o o -El
    90 00 “Cost of nine terms (excluding June), . .
    15 00 “ Trying cause, June term,.
    1 47 “ Disbursements,.
    Making in the whole, $118 47
    The judge upon taxation allowed the second and fourth items, with the charges for disbursements, and disallowed the charge for proceedings before notice, and the term costs, with liberty to appeal.
    
      J. 8. Carpentier, for appellant.
    I. The charge of five dollars for the proceedings before notice of trial should be allowed. This charge is not in lieu of the retaining fee allowed under the former system. It is the compensation allowed for drawing and serving the successful demurrer, which as a pleading is entirely superseded by an amendment of the previous defective pleading. (Collomb v. Caldwell, 5 IIow. Pr. II., 336; Van Valkenburgh v. Van Schaick, 8 Ib., 271; 2 Whitt. Pr., 276).
    II. The charges for term fees were properly made. 1. The cause was noticed for trial at each term by the plaintiff, and the defendant was compelled to attend, prepared for trial, whenever the plaintiff appeared to try the cause pursuant to his notice. As concerns the defendant, the cause was necessarily on the calendar until it was brought to trial. (Sipperly v. Warner, 9 How. Pr. B., 332). The plaintiff omitted to bring on the trial at the peril of paying term fees if unsuccessful. The defendant could not bring on the trial on the plaintiff’s notice. lie was not bound to take a default upon his own, and had the right to omit doing so at the peril of paying chsts if the plaintiff succeeded. 2. Subdivision 8 of section 307 of the Code is to be construed as if it read “not reached, and postponed;” that is, postponed at the instance of the party claiming the costs. The provision for the allowance of term fees is to be construed liberally. (Minturn v. Main, 2 Sandf. S. G. R., 737). 3. If a cause noticed for trial be called and not moved, and at the succeeding term be placed on the calendar as of the date when called and passed at the preceding term, the cause is “ necessarily on the calendar ” at such subsequent term, and the plaintiff is entitled to his term fee. (Post v. Westervelt, 4 Sandf. S. C. R., 689).
    
      E. Delafield Smith, for respondents.
    I. The respondent has offered to allow the first item ($5, for all proceedings before notice,) and he hereby consents to its restoration to the tax-bill. The court is therefore relieved from deciding this point.
    II. The only question then is — Are the term fees taxable 1 It is admitted that the special term calendar was called through every term. The cause was therefoi’e at every term invariably reached; and in fact it was also invariably postponed. There is then no right to term fees under the statute.' (Code, § 307, Subd. 8). The appellant cannot evade the force of the word “reached.” The adverb “not” in the words “not reached or postponed,” qualifies both the verbs reached and postponed. (Trustees of Penn Tan v. Tuell, 9 How. Pr. R., 402).
   INGRAham, P., J.

The papers submitted in this case do not distinctly show for what purpose the costs were adjusted, but I conclude from the points that the question arises as to what costs the plaintiff should pay on amending his complaint, after a demurrer to it had been sustained.

Two items were disallowed upon adjustment — one was for proceedings before notice of trial, $5, and the other costs of nine terms, at $90.

If the defendant was about to enter up judgment against the plaintiff after the decision on the demurrer, the first item was perfectly allowable.

I am also inclined to think that it is to be allowed if the plaintiff elects to amend. The Code allows it for proceedings before notice of trial, although that was mainly in reference to a case where an issue of fact has been tried, still it is fairly included in the costs of a demurrer.

It is the only item allowed for pleadings to the plaintiff for his complaint — to the defendant for his answer, and in the present case to the defendant for his demurrer. The costs of drawing, &c., of the demurrer, were taxable before the Code, and nothing in the practice now alters that rule. Whatever, therefore, is intended to pay for this pleading in the present fee-bill should be allowed. As the plaintiff consents that this item should be allowed on the appeal, it is unnecessary to discuss it further.

The other item for term fees was properly disallowed. It does not appear from the papers whether it was on the trial or argument calendar. If on the trial calendar (which I suppose was not the case here,) it was not chargeable as part of the costs on the demurrer.

If on the argument calendar, it would be taxable if the cause was not reached or postponed, and not otherwise. We have repeatedly so decided. In this court there never has been, to my knowledge, since the present arrangement of our terms, an instance in which the special term calendar has not been called, and in which every cause on it could not have been heard if the parties so elected. No case has occurred when every cause upon it has not been reached. If parties will not dispose of their cases when so reached, they are not entitled to the costs of the term. Either party may notice, and either party so noticing may have the opportunity of disposing of his case if he sees fit at the commencement of the term. If he neglects so to do, he loses the costs of the term. There is no ground whatever upon which the court can allow it, without counteracting the very object of the statute.

The adjustment of costs must be corrected by allowing the first item for proceedings before notice, $5.

No costs allowed on this appeal.  