
    Henry A. Gowing et al., Resp’ts, v. Marcus Levy et al., App’lts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed February 18, 1892.)
    
    Costs—Bote of issue—Term uses.
    In June, 1889, a note of issue was filed, but no notice of trial was served. until February, 1891. The case was then waiting its turn on the calendar, and went off under stipulation, and thereafter leave to serve an amended complaint was granted on payment of costs. Held, that as there had been, no trial, a trial fee could not be taxed, and as no note of issue had been filed for any month for which the cause was noticed for trial such notice was ineffectual, and no term fees could be allowed.
    Appeal from order denying defendants’ motion to review taxation of costs.
    
      1. L. Bamberger, for app’lts; E. Stanton, for resp’ts.
   Patterson, J.

In December, 1891, Mr. Justice Andrews granted a motion allowing the plaintiffs to serve an amended complaint on payment of the defendants’ costs and disbursements to date, to be taxed by the clerk. On presentation of the bill of costs the clerk disallowed a trial fee of thirty dollars and five term fees of ten dollars each. The cause had not prior to February, 1891, been reached in its order on the calendar, but was awaiting its turn. An application was made to the court to review the taxation of the clerk,'and after hearing the parties, .Mr. Justice Barrett sustained' the refusal of the clerk to allow the items insisted upon by the defendant. In this he, was clearly right There had been no trial, and consequently a trial fee “was not taxable. Studwell v. Baxter, 33 Hun, 331. As to the five term fees there was enough before the court to show that the case was on the calendar under notice of trial for the first time in February, 1891, and then went off by a stipulation between the parties. These facts are shown, by the affidavit of Mr. Stanton, which very materially modifies what was sworn to by Mr. Bevy as to the case having been, duly noticed for trial for previous months, and it is also thus made to ajspear that there was no correspondence between the note of issue filed June 12, 1889, and the first notice of trial given for the February term, 1891. A note of issue not having been filed for any month for which ■the cause was noticed for trial, such notice was ineffectual, and the cause could not be moved for trial because of its service. "While but one notice of trial is required to be served in this judicial district, it is the service of that notice that callq upon the party to ascertain the situation of his cause on the calendar, and when he receives it for a specified term, he is not bound to look back upon the calendar to see if his adversary has put it on for some prior or subsequent term. Code, § 977. The order was right and must be affirmed, with ten dollars costs and disbursements.

Van Brunt, P. J., concurs; O’Brien, J., concurs in result.  