Thomas O'Rourke Gallagher, Appellant, v. Abner C. Surpless and James M. Gallagher, Respondents

Thomas O’Rourke Gallagher, Appellant, v. Abner C. Surpless and James M. Gallagher, Respondents. Second Department, May 4, 1917. Costs—judgment on pleadings rendered by Special Term after case is on trial calendar. Where a case noticed by both parties for trial has been upon the calendar for several terms for the purposes of trial and thereafter before trial the Special Term grants the defendant’s motion for judgment on the pleadings, the defendant does not forfeit his right to costs which have accrued to him as prevailing party. He is entitled to costs before and after notice of trial and tó term fees, but not to atrial fee. Appeal by the plaintiff, Thomas O’Rourke Gallagher, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 19th day of February, 1917, denying his motion for a retaxation of costs. Thomas O’Rourke Gallagher, appellant, in person. Frederick A. Keck, for the respondent Abner C. Surpless. Fred L. Gross, for the respondent James M. Gallagher. [MAJORITY — Per Curiam:] Per Curiam: Both parties noticed the case for trial, and there were proceedings thereafter for the purposes of trial, and the case was necessarily on the calendar for five terms. A trial was not had, as the court of its own motion continued the case. Thereupon the defendants’ motion for judgment on the pleadings was granted at Special Term, and judgment had accordingly. The defendants did not thereby forfeit costs that had accrued to the prevailing party. They have taxed costs before and after notice of trial, term fees and trial fee of an issue of law. The trial fee should not be taxed. The order should be modified accordingly, without costs of the appeal. Jenks, P. J., Thomas, Mills, Rich and Putnam, JJ., concurred. Order modified by disallowing trial fee, and as so modified affirmed, without costs.