
    (35 Misc. Rep. 114.)
    YOUNG et al. v. SYRACUSE, B. & N. Y. R. CO.
    (Supreme Court, Special Term, Onondaga County.
    May, 1901.)
    Costs—Trial Fee.
    Where plaintiffs are nonsuited, and the decision is reversed by the appellate division, and the latter decision is thereafter affirmed by the court of appeals, and judgment absolute given, a subsequent assessment of damages is not a trial for which a trial fee can be taxed, but clerks’, jurors’, and witnesses’ fees are taxable thereon.
    Action by William Young and others against the Syracuse, Binghamton & Yew York Railroad Company. A judgment of nonsuit was reversed by the appellate division, which judgment was affirmed by the court of appeals. The damages were thereafter assessed, and certain costs taxed. Motion by defendant for retaxation. Modified.
    W. S. Jenney, for the motion.
    George W. O’Brien and L. P. Lang, opposed.
   HISCOCK, J.

The trial fee of $30 must be disallowed. There has been only one trial of the action, and for that plaintiffs, without objection, have been allowed to tax a trial fee. The assessment of damages is not a trial, or, as claimed, an inquest, so as to allow plaintiff to tax a trial fee. The other disbursements are allowed, and the motion to disallow them denied. I have no doubt that their allowance is amply provided for by the provisions of sections 3228, 3256, Code.

Ordered accordingly.  