Estate of Mallon, Deceased. stances of the case were amply sufficient to warrant the court in awarding them. It follows, therefore, that the order appealed from must be affirmed, with costs. HALL, J., concurred. ESTATE OF MALLON, DECEASED. SURROGATE'S COURT, KINGS COUNTY, DECEMBER, 1887. $ 2667. Letters of administration—When modified security not taken and limited letters not issued. The provisions of the Code of Civil Procedure, § 2667-authorizing limited letters of administration and the acceptance of modified security-relate only to a case in which there is a right of action granted by a special provision of law, and not to one in which there is an ordinary claim or debt due an intestate,—as e. g., a claim for salary which is disputed. (Decided December 31, 1887.) Application for letters of administration and that modified security be taken. The opinion states sufficient facts. Petition in person for application. LOTT, Surr. This is an application for letters of administration on the estate of said deceased. The petition recites that the deceased was a resident of the city of Brooklyn at the time of his death, and that the assets Simpson et al. v. Rowan. consist only of a claim for salary, which is disputed, and the petitioner prays for letters, and that modified security be taken, as it is impracticable to give a bond sufficient to cover the probable amount to be recovered; and that modified security be given and letters issue limited to the prosecution of such claim, but restraining the petitioner from a compromise of such claim, and the enforcement of any judgment recovered thereon. I find, upon examination of section 2667 of the Code, that it was the intention of the Legislature that the section relate only to a right of action granted by a special provision of law, and not to an ordinary claim, or debts due an intestate. Motion denied as to modified security. SIMPSON ET AL. v. ROWAN. SUPERIOR COURT OF THE CITY OF NEW YORK, SPECIAL TERM, SEPTEMBER, 1887. $$ 3251, 3256. Costs When expense of commission to take the testimony of party and witnesses may be taxed. What term fees taxable in first department. Where a commission was issued to take the testimony of he plaintiff in an action and of other witnesses residing without the State; the c est icef is taxable as a disbursement in .he action. Delcomyr Chamberlain (39 N. Y. Super. [7 J. & S.] $59), distin. guished. Term fees may be taxed in the first judicial district for terms during which the case is on the calendar of the court, although it is not reached during those terms. Where it was agreed between the parties to an action that a commission should issue to take the testimony of one of the parties and of witnesses without the State, and that such stipulation should act as a Simpson et al. v. Rowan. stay, and thereafter, but before the stipulation was reduced to writing and signed, the plaintiff gave notice of trial and the case, when reached upon the calendar, was put off for the reason that such commission had not been returned,-Held, that the plaintiff, upon an offer of julgment being made and accepted after the return of the commission, was entitled to tax term fecs for the terms the case was upon the calendar. (Decided December 23, 1887) Motion by defendant for a new taxation of costs. This action was brought by the plaintiffs, who are attorneys residing at San Antonio, Texas, to recover for professional services rendered by them to defendant, who is also an attorney, alleged to be of the value of $1,000. The answer took issue as to the value of the services, and also alleged payment. Shortly after the joining of issue, and before the case was noticed for trial or a notə of issue had been filed, it was agreed between the parties that an order should be entered directing that a commission issue to take the testimony of the plaintiffs and of all the witnesses in Texas; and that, pending the execution of such commission, proceedings in the action should be stayed. Some time after the agreement was made, but before it was reduced to writing, the plaintiffs' attorney served a notice for trial for the April, 1887, term, and filed a note of issue; on April 20, the stipulation that the commission should issue was signed by the parties, and it was thereafter duly issued; the commission was returned on October 15, 1887, and thereafter the defendants noticed the case for trial. In October, prior to the return of the commission, the case appeared on the calendar of the clerk of the court, and was, because of the non-return of such commission, marked, "off." Thereafter, the defendant offered to allow judgment in favor of the plaintiffs to the amount of $200 and costs, and the plaintiffs accepted Ellsworth v. Parkes, such offer and served a bill of costs with a notice of adjustment in which was included the costs of executing the commission and also term fees for the terms the case was upon the calendar, excluding the term during which the offer of judgment was made and accepted; the defendant's attorney appeared before the clerk and objected to these two items, and the clerk overruled the objection, and the defendant took an exception, and thereafter made this motion. David N. Rowan, defendant in person, for the motion. TRUAX, J.-The plaintiff in Delcomyn v. Chamberlain (39 N. Y. Super. [7 J. & S.] 359) was the only person examined; here others than plaintiff were examined. It has always been the practice in this district to tax term fees when the case is on the general calendar, although as a matter of fact it is not reached during the term.* The clerk is sustained: no costs. *The following case bears on this question. ELLSWORTH v. PARKES. SUPREME COURT, SECOND DEPARTMENT, KINGS COUNTY, SPECIAL TERM, NOVEMBER, 1887. $3251. Costs What term taxable. Where an action was noticed for trial at the October circuit in Kings county, and a note of issue filed and the case was tried on November 23; a new circuit having commenced on November 14,-Held, that the party succeeding on the trial was entitled to tax one term fee. (Decided November 30, 1887). Motion by defendant for a new taxation of costs. This action was brought to recover on a claim for commissions for the selling sash, doors, blinds, etc. Issue was joined May 16, 1887, and People ex rel. Crane v. Grant. PEOPLE ex rel. CRANE v. GRANT, SHERIFF, ETC. SUPREME COURT, FIRST DEPARTMENT, SPECIAL TERM, JANUARY, 1888. $572. Discharge from imprisonment—When refused, although execution against the person not issued within ten days after the return of execution against the property. Where an execution against the property was issued on June 4, and returned nulla bona June 24, and it appeared that the plaintiff therein had no knowledge of its return until July 20, when she promptly issued execution against the person,-Held, that reasonable cause was established for refusing an application for a supersedeas the cause was thereafter duly noticed for trial at the circuit in Kings County commencing October 3, 1887. A note of issue for that term was duly filed and the case placed upon the general calendar of the court, but it did not appear on the day calendar until November 18, and was tried on November 23, resulting in a verdict in favor of the plaintiff for $19.93. A new circuit commenced in that county on November 14, and the case would have been reached in its regular order upon the calendar before that day if the parties had not stipulated that the trial should be adjourned; this the attorneys for the respective parties did for their own convenience, filing a written stipulation to that effect with the clerk of the court. The defendant's attorney served a bill of costs with notice of adjustment in which was included two term fees of $10 each; at the time the bill was presented to the clerk for taxation (November 30), the plaintifi's attorney objected to these two term fees, and the clerk disallowed the same. The attorneys thereupon forthwith appeared before the justice presiding at the special term in Kings county and submitted the question arising upon such ruling to him. I. L. Sink, for defendant and motion. Hy. Huffman Browne, for plaintiff, opposed. BARTLETT, J.-One term fee should be allowed. Vol. XIII.-14. |