Hayes against Bayley

Hayes against Bayley. Where the verafotee^uPreme °°urt’ sum which carries com-allowed counsupreme a<Lurt ho cannot "be aifechas00™!*1 for any service there beingno rate fixed for the service i counsel m tl C. P. After the re-taxation ordered, ante, p. 42, -in this cause, the plaintiff’s attorney re-taxed his costs; and-the commis.allowed the plaintiff a counsel fee of $3 75, being . ‘ ’ . . ? . at the supreme Court rate, on opposing the motion to set aside the report of referrees ; though the costs properly allowable in. the cause were Common Pleas costs only. ‘This the plaintiff claimed on the authority of Alcott et al. v. Phelps, (1 Cowen’s Rep. 170 ;) contending that .though there was no counsel fee allowed in the C. P., yet it should be allowed here ; and that it must .be at the Supreme Court rate ; as none was established in the C. P. A motion was now again made for a re-taxation. B. Whiting, for the motion. D. Beecher & J. A. Spencer, contra. [MAJORITY — Curia.] Curia. We said ,in Alcott et al. v. Phelps, that the plaintiff might charge for all necessary services, on a recovery of less than $250, at the Common Pleas rate, and we allowed o. -nisiprius record; butthere is no rate established in that Court for a counsel fee. It by no-means follows from .this, that the plaintiff is entitled to its allowance, and that top .ait the Supreme Court rate. It is a service entirely unknpjvn to the Common Pleas, and to which there is no rate in that Court applicable. The counsel fee must be stricken out. Rule accordingly.