
    SUPREME COURT.
    Sipperly agt. Warner.
    A cause is “ necessarily ” on the calendar, (§ 307, sub. 8,) when it is ready for trial, and regularly put there hy the party noticing it.
    Where a cause, before being reached on the calendar at the circuit, is referred or postponed by stipulation or consent of the respective attorneys, the successful party is entitled to tax $10 costs for that circuit.
    But where the successful party, against the consent of the other, procures a reference or postponement, he is not entitled to such fee.
    
      Albany Special Term,
    
    
      Jan. 1854.
    Appeal from taxation of costs.
    The action being at issue was noticed for trial at the circuit held in Albany, in June, 1853. After the commencement of the circuit and before the cause was reached upon the calendar it was referred by consent of the attorneys for the parties. The plaintiff having obtained a report in his favor, claimed, upon the taxation of his costs, to be allowed a fee of $10 for the June circuit. This item was objected to, and disallowed by the clerk. The plaintiff moved for a retaxation.
    Martin I. Townsend, for Plaintiff.
    
    T. C. Sears, for Defendant.
    
   Harris, Justice.

I think the fee in question should have been allowed to the plaintiff. The cause was “ necessarily ” on •the calendar, for by the term “ necessarily,” I suppose nothing more is intended than that the cause should be regularly or properly upon the calendar. In other words, the cause is necessarily on the calendar, when, being at issue and in readiness for trial, the party who has noticed it for trial has put it on the calendar for the purpose of trying it, if he has an opportunity.

The cause was also postponed. It is true that the order which had the effect to postpone the trial was entered by the consent of the parlies, yet it is not the less true that the cause was postponed. I concur in the decisions which hold that where a cause, being on the calendar, is postponed upon the application of one party, against the will of the other, the party obtaining the postponement shall not afterward be allowed a fee for attending that circuit. It would be obviously unjust to allow a party who had been successful in the action to charge the unsuccessful party his costs for attending a circuit, after having himself prevented the cause from being tried at such circuit. There is nothing in the provision of the Code upon this subject which requires such a construction.

It was upon this distinction that the decision in Perry agt. Livingston (6 How. 404) was founded. The cause was upon the calendar for trial. It was referred, upon motion of the defendants, and against the objection of the plaintiff. The defendants having succeeded upon the trial, sought to charge the plaintiff with the costs of the circuit at which the cause had been thus postponed at the instance of the defendants, and against the plaintiff’s will. It was properly held, that this could not be done. Hinman agt. Bergen (3 Code R. 225) is to the same effect. On the other hand, in Burton agt. Shelden, (1 Code R. 134,) where, as in this case, the cause being on the calendar, was referred by stipulation, it was held, that the successful party was entitled to tax a fee of $10 for the circuit at which the cause was thus postponed. An order must be entered directing the clerk to amend the entry of costs in the judgment by adding the item thus improperly rejected.  