
    Abigail M. Roberson, an Infant, by her Guardian ad Litem, Margaret E. Bell, Appellant, v. The Rochester Folding Box Company and Franklin Mills Company, Respondents.
    
      Appeal — where a rea/rgument is ordered afee is taxable for it as well as for the first argument.
    
    Where, after an appeal from a judgment has been argued at the Appellate Divis-' ■ ion, the court orders a reargument and one of the justices who- heard the first argument is, after the reargument is ordered and before it is made, transferred to another department and another justice is assigned to take his place,- before whom and the other members of the court the case is argued de nova, the successful part)r is entitled to tax a fee for the "reargument as well as for the original argument.
    Appeal by the plaintiff, Abigail M. Roberson, an infant, by her guardian ad litem, Margaret É. Bell, from an order-of the Supreme Court,, made at the Monroe Special Term and. entered in the office. of the clerk of the county of Monroe on the 13th day of November 1901, disallowing an item of forty dollars costs for the reargument of the appeal at the Appellate Division.
    
      Milton E. Gibbs, for the appellant.
    . EIbridge L. Adams, for the respondents.
   Spring, J.:

The defendant interposed a demurrer to the complaint which was overruled. An appeal was taken to this court and an oral argument had and the case submitted at its last March term. The court convened and handed down its list of decisions April thirtieth. This case was not decided at that time, but a reargument was ordered. Justice Laughlin, who was,a member of this court when the appeal was first argued, and also . when the reargument was ordered, was designated to the first department of the Appellate Division and severed his connection with this department on Apvil thirtieth. The appeal was placed on the calendar and reargued at the May term of this court, at which term Justice Ru-msey was sitting by designation in the place of Justice Laughlin. In" addition to the briefs used on the former argument, the defendant, on the second argument, presented and submitted a reply brief. The -order was affirmed, Justice Bumsey writing for the court, and the contention of the plaintiff, respondent, is that he is entitled to tax forty dollars for the argument made pursuant to the order of the court, as well as for that made at the March term.

We believe his position is correct. In Guckenheimer v. Angevine (16 Hun, 453) a motion for. a new trial was made at Special Term ■on a case after a verdict for the plaintiff, and the justice sitting heard the argument, but did not decide the motion, and ordered it to be heard before another justice at a subsequent term, who heard the argument and denied the motion. The clerk, in taxing the costs, allowed the plaintiff two argument fees, one of which was stricken out by the Special Term. The order was reversed by the General Term, and, after discussing another question, the court say : “ And on the merits we are. of the opinion that the plaintiffs were ■entitled to the argument fee given by statute for each argument. It does not appear that the necessity for a reargument was caused by any act or omission on their part, and two arguments having been in fact made, we think the items were properly taxed.” That •case is closely analogous to the present one, and is decisive of it. In ■each the reargument was made without the fault of the party •eventually successful and upon the -order of the court. In each case the attorney made the argument and did the work which entitled him to the compensation prescribed. In Miller v. King (32 App. Div. 349) a reargument was ordered upon the motion of the unsuccessful party aftér decision by the General Term, and on the reargument a new trial was granted, the plaintiff again succeeding upon the new trial, and the Appellate Division held that he was •entitled to tax costs for both arguments, and quote with approval the extract given above from the Gxickenheimer opinion.

Section 3251 of the Code of Civil Procedure, in providing the rates at which costs are to be awarded, in subdivision 3 allows “ for the trial of an issue of fact * * * thirty dollars.” The party ultimately successful is entitled to a trial fee for every trial had. In Cregin v. Brooklyn Crosstown Railroad Co. (19 Hun, 349) the first trial was before a justice, of the City Court of Brooklyn and a jury, resulting in a verdict for the plaintiff. Before the entry of judgment it was discovered that the judge who presided at the ' trial was disqualified from sitting and another trial was thereupon had and another verdict rendered for the plaintiff, and an appeal was taken from an order of the Special Term allowing two trial fees to be taxed in favor of the plaintiff, The General Term, in affirming the order, say: “ The disqualification of the trial judge was an irregularity which prevented the'entry of- judgment, but it- cannot deprive the successful party, of his costs.”

While the language of this subdivision does not provide for a. trial fee for each trial, yet the cases seem to be uniform in holding that for every trial, whatever may- be the cause which induced it,exeépt possibly the fault of the party seeking costs, a trial fee is allowed. This rule prevails even though the trial is an inquest

(Comdee v. Jones, 13 Civ, Proc. Rep. 160; Wessels v. Carr, 6 N. Y. Supp. 535), or a default taken at a Trial Term (Lennon v. MacIntosh, 19 Abb. N. C. 175), or where the case is dismissed where the case is regularly called and the plaintiff fails to appear (Van Gelder v. Hallenbeck, 18 N. Y. St. Repr. 19), and even if the-jury were discharged after the evidence by reason of the misconduct of a juror. (Hamilton v. Butler, 30 How. Pr. 36.) When costs are fixed by statute there is no discretion in the court to alter the amount of any item from the statutory rate. (Downing v. Marshall,. 37 N. Y. 380.)

The language of subdivision 4 of this section in providing for costs' to be awarded the successful party after an appeal to the Appellate Division is “for argument, forty dollars,” following, the wording of the preceding subdivision, and by analogy the party who-eventually wins out in this lawsuit should be allowed the stipulated fee for every argument he is compelled to make. The theory of the allowance is that it is compensation for services rendered in performing the precise labor covered by the award. Whether this is done at the instance of the court by reason nf the disqualification of one or more of its members, or because of an even division of the court as constituted at -the time of the argument, and bn account-of a change in the personnel of the court an opportunity is given to break the deadlock, or whatever may be the reason, as long as no blame attaches to the party claiming costs, it seems clear that he is entitled to receive the sum fixed as the measure of his pay. for-that specific work.

Certainly, in the present case, we can see no reason for departing from this rnle. The realignment was ordered by this' court, the case was regularly on the calendar for the succeeding term, and the second oral argument was not a perfunctory one, for Justice Eumsey first became a member of the court that term and the argument de nova was proper for his enlightenment.

We, therefore, conclude that the order should be reversed, with ten dollars costs and the disbursements of this appeal, and the motion to strike out one argument fee denied, with ten dollars costs.

McLennan, Williams and Hiscock, JJ., concurred; Adams, P. J., not voting.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.  