¶1There was no warrant in law for taxing a trial fee in these cases. Section 3251 of the Code, subdivision 3, provides for costs as follows: *332“ For all proceedings, after notice of trial, and before trial, … fifteen dollars. … For the trial of an issue of fact, thirty dollars.”
¶2Manifestly there can be no allowance for a trial fee unless there has been in fact a trial, as the previous item of fifteen dollars embraces all proceedings up to the time of the trial. The question to be determined is, therefore, was there or not a trial in these cases when no jury was ever impanneled.
¶3In Third National Bank v. McKinstry (2 Hun, 443) a trial fee was disallowed in a case where the trial had been actually commenced, but had been stopped after a witness had been sworn and the cause sent to a referee, the court saying Mr. Justice Gilbert delivering the opinion: “ A trial is a judicial examination of the ^sues between the parties. … Rut when the court refuses to examine the issues, … it would be a stretch of common sense and of law to hold that there had been a trial.”
¶4Sutphen v. Lash (10 Hun, 120) is directly in point. There had been a regular dismissal which had been set aside; the cause was then brought on for trial a second time, when plaintiff obtained an order, of discontinuance. It was held that defendant could only have a trial fee forth e first trial. The head note of the case directly states the point decided by the Court.
¶5There are diota in some old cases to the effect that if a party is all ready to try a cause, and is prevented by a settlement or similar act, he may have a tidal fee for his labor in getting ready to try. All of those cases were cited by counsel in the case in 2 Hun, and must be considered as overruled. And the plain answer to them is that the law only allows the fee for a trial, the labor of preparing for it being provided for in the other item of fifteen dollars. Under the orders made at circuit, the plaintiff has leave to discontinue on payment of costs. If he does not avail himself of the privilege the cases remain in the condition they were in when the orders were made. (Society of N. Y. Hos. v. Coe, 15 Hun, 440.)
¶6The orders should be reversed, with costs and disbursements.
¶7Orders reversed, with costs and disbursements on each appeal.