Sparrowhawk v. Sparrowhawk

There is no sanction for the position of the defendant either in the Code or reports. In no case is it believed that the successful party may tax the twenty dollars before argument, and forty dollars for argument on application for final judgment upon the coming in of the referee’s report giving the evidence and the facts. The defendant has been allowed fifteen dollars before trial, and thirty dollars for trial of the issues between the parties. Her present claim, if allowed, would give her sixty dollars extra for the argument of the legal questions presented by the case. Both allowances cannot be made for a single trial and argument and judgment,

*530The defendant’s theory that the referee’s report is a special verdict is unfounded. “A special verdict is that by which theywy find the facts only, leaving the judgment to the court.” (Code, § 260.) That chapter of the Code relates only to trial by jury. Such a special verdict gives the right to costs before argument twenty dollars, and for argument forty dollars, on application for judgment under subdivision 5 of section 307 of the Code. This was not a special verdict, and the motion was not founded upon a special verdict. It was the hearing at Special Term required by Rule 92 after the trial of the issue or upon the coming in of the proofs. By the same rule it is provided: “No judgment in an action for a divorce shall be entered except upon a special direction of the court.” It evidently contemplates that the proceedings before the referee and the motion for judgment together, constitute a trial of the issues joined between the parties for which costs may be taxed, as in fact they have been, by the clerk in this case.

The papers on which this appeal is founded are very defective in not giving the order of reference, the report of the referee, and the order for judgment upon which the motion at Special Term was made. Enough, however, appears to satify this court that neither the clerk nor the learned judge at Special Term erred in refusing to the defendant the sixty dollars costs before and for argument on application for judgment.

The order of the Special Term is therefore affirmed, but as the parties are husband and wife such affirmance is without costs.

Order affirmed, without costs.