
    William Dame, Respondent, v. Marshall H. Maynard, Appellant.
    Third Department,
    June 29, 1910.
    Costs — default on. retaxation — remedy — trial fee — term fee.
    One. who makes an excusable default when the costs of an action are retaxed, is not without remedy for defects therein. He may have the bill of costs corrected on motion under section 3265 of the Code of Civil Procedure.
    Where a reference is agreed upon before the opening of court, and upon the first day of the term before the case is called an order of reference is made, no term fee for that term can be taxed although the referee never reported and another trial before a new referee was necessary.
    
      Where the defendant terminates a reference because the referee failed to report,- and later obtains a judgment-before a new referee, he may tax a trial fee for the trial before the first referee.
    Appeal by the defendant, Marshall H. Maynard, from an order of the Supreme' Court, made at the Clinton Special Term and entered in the'office of the clerk of said county on the 1st day of February, 1910, striking out certain items of a bill of costs after the same had been taxed by the clerk.
    
      Wilmer H. Dunn, for the appellant.
    
      John E. Judge, for the respondent.
   Smith, P. J.:

This action was first referred to one Wolcott as referee. Sixty days having expired from the submission of the case to the said referee and no report having been made, the defendant terminated the reference. By stipulation the case was thereafter referred to another referee, who reported in favor of the defendant. .The clerk taxed the costs, including therein ten dollars for the term fee at which the action was referred, and thirty dollars for the trial fee before the referee Wolcott, in addition to thirty dollars for the trial'fee before the last referee. Notice of retaxation was given, and upon the default of the plaintiff the costs were retaxed as originally taxed. The plaintiff then excusing -his default, made this motion to strike out from the bill of costs the ten-dollar term fee and thirty-dollar trial fee before the-first referee. This motion has been granted, and from the order granting the same this appeal is taken.

It is first objected that the plaintiff is without remedy because of his failure to appear before the taxing .officer. Section 3265 of the Code of Civil Procedure seems upon its face to authorize a retaxation by the court upon which the court “ may allow or disallow any item objected to before the taxing officer.” The latter part of the section authorizes a new taxation to be directed by the court to be made by the taxing officer under such instructions as the court may give. It caritiot be, however, that one who makes excusable-default when the costs are taxed, can be entirely without remedy. There must be,some place where upon-presenting his excuse he can

review that taxation. Section 3265 has been held to authorize relief to a party who has made such default. (Talcott v. Jonasson, 43 Misc. Rep. 372.) What terms should be granted is a matter for the Special Term to determine upon the application.

The term fee was not properly taxed. The cause was agreed to be referred before the opening of court and upon the first day of the term, before the case was called, the order of reference was made, so that the case was not necessarily upon the calendar for trial. As to the trial fee before the first referee, 1 have more doubt. A trial fee is authorized to the successful party for a trial which miscarries by a disagreement of the jury, or fór a trial which is rendered abortive by the disqualification of the judge. The defendant was at no faiilt for canceling the reference. He was simply exercising his legal right, after the referee had delayed his decision beyond the time'' allowed him in section 1019 of the Code. I see nothing in the facts of this case to talce it out of the general rule that a trial fee is allowable for each trial, whether such trial result in a determination of the question, or prove abortive for any cause.

Ho affidavit was read by the defendant upon this motion, The facts are conceded. There is no occasion for sending the matter back to the taxing officer. The order should be modified so as to allow the thirty-dollar trial fee and to disallow the ten-dollar term fee, and striking out ten dollars costs of motion in Order appealed from, and as thus modified affirmed, without costs to either party.

All concurred.

• Order modified so as to allow the thirty dollars trial fee and disallow the ten dollars term fee, and striking out ten dollars costs of motion in order appealed from, and as thus modified' affirmed, without costs to either party. ■  