Berdell agt. Berdell.

parties. The conclusion reached upon that subject renders unnecessary any consideration of the exception taken at folio 352.

These suggestions, it is believed, cover all exceptions to which our attention has been directed by the learned counsel for the appellant.

From a review of the somewhat voluminous record, no error is found, save the disallowance to the defendant of the item of January 27, 1874, $281.54, by which amount the judgment should be reduced.

The judgment should be reversed, with costs, unless the plaintiff reduce same $281.54, and if so reduced should be affirmed, without costs.

SUPREME COURT.

CHARLES P. BERDELL agt. JULIA C. BERDELL. ·

Deposition of a party — when party examined before trial may be brought into court as a witness.

When a plaintiff has examined the defendant under the provisions of the Code, he may nevertheless bring such defendant into court as a witness to prove additional facts about which no examination was had.

First Department, General Term, May, 1882.

Before DAVIS, P. J., BRADY and INGALLS, JJ.

APPEAL from judgment of the special term dismissing the complaint.

N. Taylor, for appellant.

Niles & Bagley, for defendant.

PER CURIAM. Our examination of this case upon the merits leads to the impression that the complaint was properly dismissed. But we are not disposed to pass upon that

Berdell agt. Berdell.

question distinctly, because we think a new trial must be granted upon exceptions taken to the rulings of the court.

The plaintiff had examined the defendant Julia C. Berdell, under the provisions of the Code. He subpoenaed Mrs. Berdell, and brought her into court as a witness at the trial, and asked that she be sworn. The counsel for the defendant objected to her being sworn, on the ground that she had been examined before trial at the instance of the adverse party. The court thereupon ruled that, having been examined before the trial at the instance of the adverse party, she could not be called as a witness at the trial by the adverse party. To this ruling the plaintiff duly excepted.

The following further proceedings were then had, as appears

in the case:

PLAINTIFF'S COUNSEL-I propose to call Julia C. Berdell to prove additional facts about which she was not examined before the trial.

Objected to.

The COURT You cannot call her as a witness, having examined her before the trial.

To which ruling the plaintiff duly excepted.

PLAINTIFF'S COUNSEL- This examination was taken at the office of the defendant's counsel, and no judge was present, and I desire to ask her some questions inadvertently omitted to be asked on the examination.

The court refused to permit her to be called as a witness, to which ruling counsel for plaintiff duly excepted.

PLAINTIFF'S COUNSEL-I desire to prove by her some facts not included in this examination, and on which she was not examined.

The court refused to permit her to be called as a witness, to which ruling the plaintiff duly excepted. Under this ruling of the court plaintiff's counsel read the examination of Julia C. Berdell, taken before trial.

We are of opinion that the rulings of the court, in disposing of the several offers of the counsel, and in refusing to

Ehlers agt. Willis.

permit Mrs. Berdell to be sworn as a witness, were erroneous. The Code does not, by any of its provisions, preclude a party who has examined his adversary in an action, out of the court, from calling him at the trial as a witness, especially when the object of so calling him is declared to be to prove additional facts, about which he was not examined, and to ask questions inadvertently omitted to be asked on the examination. Where an examination taken out of court has been read upon the trial by the party in whose favor it was taken, the court may properly preclude that party from further examination upon the subject embraced in the deposition. But even in such case it was said in Wilmont agt. Meserole (40 Superior Court R., 321), that the party would be at liberty to examine as to new matter, or as to matters which, by inadvertence, had been omitted.

But when an examination taken out of court is not used or sought to be used by the adverse party, we do not think the Code precludes the calling of the witness by such party on the trial in court for a general examination. But if this be not so, that is certainly no ground for holding that an examination cannot be had as to new matter, or as to subjects inadvertently omitted.

For these reasons we think the judgment must be reversed and a new trial granted, with costs to abide the event.

N. Y. MARINE COURT.

HENRY J. EHLERS agt. THOMAS WILLIS.

Discontinuance of action. Trial fee - Costs· Cause on day calendar but not reached and moved on, no trial fee is recoverable.

Where a cause is reached on the day calendar and moved for trial neither party can withdraw from the cause without being liable for the trial fee. But if the cause is not reached and moved on, no trial fee is recoverable.

Special Term, June, 1882.

Ehlers agt. Willis.

THE defendant offers to pay the plaintiff's deınand and costs and applies to be relieved from the litigation on paying the same into court, the plaintiff having refused to accept the amount tendered. The real contention, however, grows out of the dispute whether the plaintiff is entitled to a trial fee under the following circumstances: The case appeared upon the day calendar May 23, 1882, and both parties answered ready. Before the cause was reached for trial it was marked 'Inquest" in consequence of a proposition for settlement made by the defendant. The inquest, however, has not been taken.

MCADAM, J.-It is clear that no trial has been had within the meaning of that term as employed in the Code (28 How. Pr., 184; 2 Hun, 443; 5 T. && C., 52; 35 How., 410; 10 Bosw., 622). The issues have not been examined by the court and remain upon the calendar undisposed of. The plaintiff for this reason is not in a position to enter judgment, nor can he do so until the issues have been finally disposed of in one of the modes allowed by law. A party may, therefore, settle or discontinue an action while upon the day calendar, and before it is reached for trial, without paying a trial fee (Sutphen agt. Lash, 10 Hun, 120). But if he waits until the cause is called and moved for trial he must pay the trial fee or he cannot prevent the adverse party from proceeding with the trial, moving the case for trial under such circumstances being deemed equivalent to a trial (Jones agt. Case, 38 How. Pr., 349). The plaintiff, under these authorities, should have moved his case for trial when reached, and unless the defendant paid the plaintiff's demand and costs prior to that time the plaintiff ought to have pressed his action to a judicial. determination by verdict or inquest taken then and there, and in this way have preserved his right to the trial fee. The defendant could not have stopped the trial when once moved on, except by the payment of the claim with the trial fee and other costs. The plaintiff did not wait until the case was

Sanders agt. Townshend.

reached for trial and then move it on as he ought to have done, but contented himself with having his case marked "Inquest" on the calendar, and this mark the plaintiff now insists is equivalent to the term "trial" as used in the Code (See 15 Johns., 86; 16 id., 180; 12 Wend., 150; 9 Barb., 60). The case, in 38 Howard (supra), extends the rule as far as it can be carried without enlarging the term "trial" beyond its legitimate meaning. In a note to Robbins agt. Judd (1 Abb. N. C., 133) it is said that CURTIS, C. J., decided that a trial fee was properly taxable when a cause was discontinued while upon the day calendar, although it had not actually been called for trial. This ruling is in direct conflict with the practice, as laid down in Sutphen agt. Lash (supra), and goes beyond that laid down in Jones agt. Chase (supra). If this decision is carried to its logical sequence each day a cause is upon the day calendar must be regarded as part of the time employed in the trial, so that if the case is upon the day calendar more than two days the plaintiff is entitled, in the event of a settlement, to forty dollars trial fee whether the case is actually tried or not Such would have to be the construction placed upon section 3251, subdivision 3, under the operation of this ruling. I have concluded to follow the ruling in Sutphen agt. Lash (supra) and hold that the plaintiff is not entitled to the trial fee claimed.

N. Y. COMMON PLEAS.

JOSHTA C. SANDERS agt. JOHN TOWNSHEND.

Costs-Who entitled to costs of the appeal when by the order of an appellate court judgment is reversed, with costs to abide event.

When by the order of an appellate court judgment is reversed and a new trial ordered, with costs to abide the event, and without other limitation, the final prevailing party is entitled to the costs of the appeal.

Special Term, June, 1882.