
    Dewitt D. Crim, Respondent, v. John Drain, Appellant.
    
      Costs—what term fees are taxable.
    
    An appeal from a judgment rendered by a justice of the peace was taken to the County Court of Herkimer county. The regular jury terms of the County Court of Herkimer county are held in May and December. A regular term without a jury is also held on the first Monday of each month. The case was noticed for trial by both parties for the December term, 1900, and was placed upon the calendar for that term. January 31, 1901, the plaintiff,
    
      who was the appellant, made a motion to postpone the trial on the ground that he-was ill and unable to be present in court. This motion was granted by an order which contained the following provision, i(and also upon the further condition that the defendant may notice the same for trial for any of the regular terms of this court held on the first Monday of each month,' and have the same tried thereat either before the court without a jury or before a jury to be drawn from the so-called Herkimer or third box as the defendant may elect or the court direct.” In obedience to this condition both parties duly noticed the case for trial at the March term, but upon the application of the plaintiff the trial was again postponed. The case was noticed by both parties for trial at the April term and they were ready for trial when, upon the motion of the court, the trial was fixed for April tenth, and the jury drawn from the third, or Herkimer, box to try the cause. April 1,1901, the defendant’s counsel offered to try the case before the court without a jury, which the plaintiff’s counsel declined to do. The defendant thereupon made a motion that the issues be heard before a referee, which was denied at the instance of the plaintiff. On the eighth of April the county judge advised the defendant’s counsel that the case would not be tried on the day fixed, as he knew of no authority for summoning a jury for that time. The case was finally tried at the May term, and decided in favor of the defendant.
    
      5eld, that the defendant was entitled to include in his bill of costs the term fees for the terms appointed to be held in the months'of March and April. "
    Appeal by the defendant, John Drain, from an order of the County Court of Herkimer county, entered in the office of the clerk of the county of Herkimer on the 22d day of July, 1901, striking an item of twenty dollars from the bill of -costs theretofore taxed in favor of said defendant;
    The twenty dollars disallowed and ordered stricken from the defendant’s bill ,of costs comprised the term fees for che terms of said court appointed to be held in the months of March and April, respectively, for the year 1901.
    
      Myron G. Bronner, for the appellant.
    
      James A. Evans, for the respondent.
   Spring, J.:

This action originated in Justice’s Court resulting in an affirmative judgment for the defendant on the counterclaim interposed in the "answer. An appeal for new trial to -the County Court was taken by the plaintiff in May, 1898, and the cause was thereafter on the calendar for each term following until May, 1901, when it was tried," the defendant again recovering upon his counterclaim. The regular jury terms of" the County Court of Herkimer county are held in May and December of each year. There is also a regular term of that court on the first Monday of each month for a session without a jury. This case was regularly noticed for trial by both parties for the December term, 1900, and was upon the calendar for that term. On the 21st of January, 1901, the plaintiff made a motion to postpone the trial on the ground that the plaintiff was ill and unable to be present in court. This motion was granted upon terms and the order contained this additional provision : “ and also upon the further condition that the defendant may notice the same for trial for any of the regular terms of this court held on the first Monday of each month, and have the same tried thereat either before the court without a jury or before a jury to be drawn from the so-called Herkimer or third box as the defendant may elect or the court direct.”

In obedience to this last condition both parties duly noticed the case for trial for the regular monthly term which convened March 4, 1901. The defendant attended with his witnesses ready for trial, and upon the application of the plaintiff the trial was postponed until the regular monthly term appointed to be held April 1, 1901. The cause was again noticed by both parties for trial at that term, and they were in attendance ready for trial when, upon the motion of the court, the trial was fixed for April tenth and the jury drawn from the third or Herkimer box to try the cause. On April first the defendant’s counsel offered to try the case before the court without a jury, which the plaintiff’s counsel declined to do, and thereupon defendant made a motion that the issues be heard before a referee, which was denied at the instance of the plaintiff. On the eighth of April the county judge advised the managing clerk of the defendant’s counsel that the case would not be tried on the day fixed as he knew of no authority for summoning a jury for that time, and neither party appeared on the said day.

The order providing for a trial without a jury at the election of the defendant or pursuant to the direction of the court continued operative at least until the court declined in April to deprive the plaintiff of a jury trial. With that order unrevoked both parties noticed the cause for trial for the March and April terms. Each recognized those terms as proper for the trial of the cause and regular in every respect, and we must assume, if important, that there was a calendar of the court for those months as the affidavit of the defendant states the cause was “ necessarily upon the calendar for trial ” at the March term and the April term, 1901. It is of no moment that the county judge eventually declined to proceed with the trial on the tenth day of April. The term was fixed for April first, recognized as regular by both parties, and whatever may have become of it thereafter the case was on the calendar pursuant to the notice of both parties and was not tried. Again, while the plaintiff applied for a postponement of the case at the March term, by reason of his illness, there was no suggestion of any irregularity in the term, nor did he then insist that the case must be tried by a jury.

We conclude, therefore, that the defendant was; entitled to term fees for the March and April terms.

The order should accordingly be reversed, with ten dollars costs and disbursements of this appeal, and the motion for retaxation of costs should be denied.

All concurred.

Order reversed, with ten dollars costs and disbursements, and motion for retaxation denied, without, costs.  