HILL against SIMPSON

HILL against SIMPSON. New York Common Pleas; Special Term, January, 1871. Costs.—Trial Fee.—Judgment on Pleadings. Where an application for judgment on a pleading as frivolous under section 247 of the Code of Procedure, is granted absolutely, without leave to plead over, the successful party is entitled to costs of the cause, before and after notice, and a trial fee. Motion for relaxation of costs. Compare the preceding case. [MAJORITY — J. F. Daly, J.] J. F. Daly, J. In the case of Bernhard v. Kapp, Judge Larremore decided that where an order is made overruling a demurrer as frivolous, with leave to defendant to answer over, costs to the amount of ten dollars, and no more (being costs of motion), are to be allowed to the plaintiff. The present case stands on a different footing:— Judgment absolute, upon the answer (on motion) has been rendered for plaintiff, and according to the practice of this district and of this court, the plaintiff may tax as costs, on entering up his judgment, all the items in his bill (except ten dollars costs of motion), viz : costs before and after notice, and a trial fee. Re-taxation is therefore ordered.