Greenleaf agt. Mumford.

they were ignorant of the precise nature and amount of a fraudulent or non-resident debtor's property in the hands of third parties, within the jurisdiction of the court. No serious inconvenience can occur by the absence of this specification in the notice. The copy of the warrant which the notice accompanies, always states the exact amount claimed, and I cannot see, therefore, what embarrassment the holder of the property can be subjected to by the generality of the notice. He knows what the property is, and its amount, and by examining the warrant he can easily ascertain the amount of the claim. The plaintiff in the action requires only that amount with costs, and nothing more; or if the holder surrenders the whole to the sheriff and it exceeds the amount of the claim, he is exonerated from all further liability; the property is in the safe custody of the law. In the case before us, the Nassau Bank could certainly have suffered no wrong or inconvenience from the want of this specification. The officers of the bank knew the exact amount deposited with them, and they knew equally well from the warrant, the precise amount of the claim. In Kuhlman agt. Orser, to which I have been referred, the court says, that the sheriff is required by section 232 to make an inventory of the property, and if he has sufficient information to enable him to make an inventory, he has sufficient to enable him to give notice specifying the property. On the contrary, the provisions of the Code presume no such thing. He is not obliged to make an inventory forthwith. After serving notice of the attachment, he can require a certificate from the individuals or corporation in possession of the defendant's property, and if they refuse to furnish it, they can be required to do so by the order of the judge, and obedience to such order may be enforced by attachment. In my opinion, the legis lature did not intend that the sheriff should make this inventory on the day, or immediately after the day upon which he serves the attachment; nor did it require of him

Hamilton agt. Butler.

that he should have sufficient information at the time of the service to enable him to give a notice containing an exact specification of the property, for the reason that it provides a method by which he could procure this information after the attachment has been issued, and notice of it has been given to the holder of the defendant's property. I consider, therefore, that the notice served in this case was sufficient. As to the objection that the notice was defective in being served only on the Nassau Bank before the execution and delivery of the assignment; the law requires that the notice should be left with the debtor, corporation or individual holding such property. In this case the Nassau Bank held the property; the sum of $53,000 was actually deposited in its vaults at the time, and I have shown that this money at the said time belonged to the defendant Mumford, because the transfer which he endeavored to make of it was fraudulent, and therefore void.

Judgment for the plaintiff, in conformity with the prayer of the complaint.

NEW YORK SUPERIOR COURT.

JEREMIAH G. HAMILTON agt. WENTWORTH S. Butler.

There is no provision of law for over five term fees in any action. Consequently an extra term fee, after the cause had been on the calendar for five terms, and after it had been once tried, although set down for another trial by the judge for the next term, cannot be allowed for such term.

Where a cause has been three times tried, copies of notes taken by the stenographer on the first two trials cannot be allowed. They are not, although very useful, necessary disbursements under section 311 of the Code.

The provisions of the Code (§ 307, sub. 3) for all proceedings before a new trial $25, only apply to cases where a new trial has been granted, not to those where a trial has never been completed, as where the jury disagree, or are discharged without rendering a verdict.

The item of $30 for trial fee on an issue of fact, is properly allowed for every time the cause is tried. A trial without a verdict is still a trial, and the labor of counsel is equally great whether the jury agree or not.

Hamilton agt. Butler.

At Special Term, November, 1865. Heard November 18th, 1865, before ROBERTSON, Ch. J.

The plaintiff brought defendant in his answer

MOTION for retaxation of costs. this action to recover $550, and the claimed $1,000 against the plaintiff. The case was tried three times. On the first trial, after the evidence was all in, the justice discharged the jury on account of some misconduct on the part of one of the jurymen, and put the case off for the term. On the second trial at the next term, the jury failed to agree, and were discharged. On the third trial the jury rendered a verdict for the defendant for $1,106.85, the amount claimed by him.

IRA D. WARREN, for defendan

I. The clerk disallowed the $10 costs of the June term. The case was first tried in May, previous to which it had been on the calendar for five terms. After the trial in May, the justice holding the trial term set the case down for trial again in June. The case was necessarily on the calendar for June term, and was not reached, and we therefore claim the term fee of $10 for June.

II. The second item the clerk disallowed was $25 for all proceedings after notice and before the second trial; and also after the second and before the third. Section 307 of the Code provides, "to either party where a new trial shall be had, for all proceedings before such new trial $25.” The Code defines a trial to be "a judicial examination of the issues between the parties" (Code, § 252). It is a new trial, therefore, every time it is "judicially examined," which was three times in this case, and we therefore claim $25 for the second and third trials.

III. The clerk disallowed any trial fee except the last. The Code provides (§ 307), "for every trial of an issue of fact $30." Section 252 defines a trial to be "a judicial examination of the issues between the parties." There

Hamilton agt. Butler.

fore, we say, every time there is such a "judicial examina tion," it is a trial, and we are entitled to a trial fee. (Code, § 252 and note, and § 307, sub. 4; 4 Duer, 641; 4 How. 465; 8 How. 1; 6 How. 465; Tillinghast's Pr. vol. 2, p. 610.)

IV. We claim that we are entitled to the $13.50 and the $15, for copies of the reporter's notes of the evidence on the first and second trials. The affidavits show that they were necessary and material in trying the case the second. and third times.

WM. H. ANTHON, for plaintiff.

ROBERTSON, Ch. J. This action has been three times. tried. On the first trial the jury were discharged after all the evidence was admitted, on account of the misconduct of one of their number. On the second trial the jury disagreed. On the third trial they found a verdict for the defendant. I do not find any provision of law for over five term fees in any action (Code, § 307, sub. 7). The item in the defendant's bill of costs for an extra term fee, after the cause had been once tried, was properly disallowed.

The provisions of the Code (§ 307, sub. 3) for proceedings before a new trial, only apply to cases where a new trial has been "granted," not to those where a trial has never been completed. Both items in such bill of costs of proceedings before a new trial, were properly disallowed. The copies of notes taken by the stenographer on the first two trials, although very useful, were not necessary disbursements under the 311th section of the Code. Any other notes would have answered the same purpose, and compensation to a private stenographer could not have been a necessary disbursement; even the cost of a copy for a judge is made the subject of a special provision (Code, § 256). The charge for such copies was therefore properly disallowed. The Code defines a trial to be "a judicial

The Dry Dock Railroad Co. agt. The N. Y. and Harlem Railroad Co.

examination of the issues between the parties." A trial without a verdict is still a trial, and the labor of counsel is equally great whether the jury agree or not. The language of Mr. Justice HARRIS, in Ellsworth agt. Gooding (4 How. 4), seems to be very appropriate. Strictly speaking, where a new trial has been granted the first trial is a nullity, and yet no special provision is made by law for a second trial fee, although there is one for proceedings anew before such second trial. It may not perhaps be a matter of practical consequence to a counsel, as a court would give compensation by an extra allowance, in case a cause was tried more than once, as a difficult and extraordinary one, and of course if included in the adjustment of costs, a court would give so much less compensation as an extra allowance.

I think the items of $30 for trial fees on the first and second, as well as the third trial, should have been allowed, and the bill of costs as adjusted must be reformed in that respect, and such charges allowed.

SUPREME COURT.

THE DRY DOCK, EAST BROADWAY AND BATTERY RAILROAD COMPANY, agt. THE NEW YORK AND HARLEM RAILROAD COMPANY, THE EAST RIVER FERRY COMPANY AND OLIVER CHARLICK.

JAMES M. WATERBURY AND THE EAST RIVER FERRY COMPANY agt. THE DRY DOCK AND EAST BROADWAY AND BATTERY RAILROAD COMPANY, AND THE NEW YORK AND HARLEM RAILROAD COMPANY.

By an act of the legislature in 1826, the title to all lands four hundred feet east of low water mark on the shore of the East river was vested in the mayor, aldermen and commonalty of the city of New York.