McComb v. Kellogg.

McCOMB v. KELLOGG, AS EXECUTOR, ETC.

SUPREME COURT, FIRST DEPARTMENT, NEW YORK COUNTY, SPECIAL TERM, NOVEMBER, 1887.

$3251, subd. 3.

Costs-When defendant not entitled to trial fee on discontinuance.

Where two days before a case was on the day calendar of the court and was called for trial, the plaintiff's attorneys offered to discontinue the action and pay costs, and the defendant's attorney refused to accept the costs or discontinue the action until after he had made a motion for an extra allowance, and thereafter the defendant's attorney moved for and obtained an extra allowance of $150,-Held, that the fact that the case had appeared on the calendar and that the defendant had secured an extra allowance did not entitle him to a trial fee, and that it could not be taxed.

(Decided November 25, 1887.)

Motion for a new taxation of costs.

Defendant in this action demurred to the complaint on ground that it did not state facts sufficient to constitute a cause of action. The case was duly noticed for trial at special term, and, two days before it was reached on the calendar, the plaintiff's attorneys,-being convinced by an examination of authorities that he could not sustain the pleading, the cause being one that did not survive against the defendant as executor,-sent a stipulation consenting to the discontinuance of the action, to the defendant's attorneys, which they declined to sign. They thereupon, on the same day, sent them a check for $30, costs, with the request that they should discontinue the action, and a statement that they would pay their disbursements if they

McComb v. Kellogg.

named the amount. The defendant's attorneys declined to consent to the discontinuance until after a motion had been made by them for an extra allowance, and thereafter an application was made and an extra allowance of $150 was granted. Pending these proceedings, the case was called at special term for trial, but was not tried. The defendant's attorney presented a bill of costs to the clerk for taxation, which included the extra allowance of $150 and $30 trial fee. These items were allowed by the clerk notwithstanding the defendant's attorneys objected, and this motion thereupon made by plaintiff.

Butler, Stillman & Hubbard, for plaintiff.

Holmes & Adams, for defendant, opposed.

BARRETT, J.-The defendant would have been entitled to the trial fee under the cases (Jones v. Case 38 Пow. Pr. 350; Ehler v. Willis 63 Id. 342; Sutphen v. Lash 10 Iun, 122), but for the offer to pay costs on October 15, two days before the cause was on the day calendar and there called for trial. The plaintiff cannot be mulcted of the trial fee because of the circumstance that the defendant refused the full costs offered on the 15th in order to apply for an extra allowance. The attorney's letter on the latter head claimed no trial fee, and, but for the desire to ask an allowance, it is evident that the discontinuance would have been complete before October 17, when the demurrer was called up on the day calendar. The fact. that this defendant secured an allowance of $150 is hardly a reason for allowing the trial fee which, but for the allowance, would have been clearly inadmissible.

Taxation reversed as to the trial fee, and motion to strike it out granted, with $10 costs.

Fries v. Coar.

FRIES v. COAR.

CITY COURT OF NEW YORK, SPECIAL TERM, SEPTEMBER, 1887.

§§ 723, 724, 781, 783, 784, 788.

Holiday-Saturday half-holiday not excluded in computing time-Effect of order extending time to plead after such time has expired.

The provision of the Code of Civil Procedure (§ 788),—that if the last day to perform an act falls upon a public holiday, it must be excluded in computing time, does not include the Saturday half-holiday; and, where the time for doing an act,-as, e. g., pleading,-expires on Saturday, it should be done on that day.

Ex parte orders extending time to plead made by a judge out of court after the statutory time has run, are mere nullities, and may be safely disregarded; although the court may, on notice and after argument, relieve from a default and extend the time to plead, a judge out of court cannot, by a mere ex parte order, do so.

(Decided September 17, 1887.)

Motion by defendant to vacate a judgment taken by default.

This action was commenced on August 8, 1887, by the appearance of the defendant without service of the summons, and the time to answer was extended until September 10, 1887, which day fell upon Saturday. On that day, the defendant's attorney applied to the plaintiff's attorney for an extension of the time to plead, which was not granted; and on the following Monday, September 12, he procured an order ex parte extending the time to answer, which he forwith served on the plaintiff's attorney by mail. On the following day, the plaintiff's attorney caused the order extending time to answer to be returned to the

Fries v. Coar.

defendant's attorney without stating any reason why that was done, and entered judgment as for want of answer; thereupon the defendant's attorney made this motion.

Harris & Corwin, for defendant and motion.

Daniel E. Delavan. for plaintiff, opposed.

MCADAM, Ch. J.-The Code provision (788) that if the last day to perform an act falls upon a public holiday, it must be excluded in computing time, does not include the half-Saturday holiday provided for by the Laws of 1887, chap. 289. The time to plead herein expired on Saturday, September 10, and the answer should have been served on that day.

The ex-parte order granted on Monday, the 12th inst., extending the time to answer, was unauthorized, as the time to make such service had already expired, and the defendant's appropriate remedy was by application to the court, on notice, to be relieved from the default (see Code Civ. Pro. 8781, 783, 784. Stephens v. Moore, 4 Sandf. 674; Doty v. Brown, 3 How. Pr. 375; 1 Tiffany & Smith Pr. 453). The unauthorized ex-parte order was, therefore, properly disregarded (Hunt v. Wallis, 6 Paige, 371). While it is true that orders of the court must not be disregarded, it is equally true that ex-parte orders extending time made by a judge out of court, after the statutory time has run, are mere nullities and may be safely disregarded. Although the court may, on notice and after argument, relieve from the default and extend the time, a judge out of court cannot by a mere ex-parte order exercise a jurisdiction vested exclusively in the court while sitting as such (vide ut supra).

The plaintiff has been regular in his practice, and the motion to vacate the judgment must be denied; but, under the prayer for other relief, the default will be opened on payment within five days of $10 costs, and on serving the

Nichols v. Kelsey.

answer at the time of such payment. The judgment and proceedings had thereon to stand as security, and case to be tried on the first Monday of October.

NICHOLS v. KELSEY.

CITY COURT OF NEW YORK, SPECIAL TERM, MAY, 1887. S$ 1377, 1378.

Holiday-Service of papers on· - When leave to issue execution granted.

The act making one-half of Saturday a holiday does not prevent the service of papers or the execution of writs in legal proceedings on that day or any part of it; and a notice of motion may be properly served on Saturday afternoon.

Where a judgment-creditor whose judgment has not been paid, has complied with the provisions of the Code, section 1377, 1378, he is entitled as of right to leave to issue a new execution. (Decided May 31, 1887.)

Motion for leave to issue execution against the property of the defendant.

A judgment was recovered in favor of the plaintiff against the defendant on January 28, 1876, for $365.88, no part of which has been paid, and which remains wholly unsatisfied. The plaintiff, upon proof of this fact, made this motion.

Henry D. Hotchkiss, for plaintiff and motion.

Charles Kelsey, defendant in person.

MCADAM, Ch., J.—The plaintiff has complied with the provisions of the Code (S$ 1377, 1378), and is entitled, as