66 County Court, Niagara County, April, 1896. [Vol. 16. it must be distributed among the creditors, legatees, etc., or their assigns." It is quite clear, under this section, that the assignee of a legatee is a proper party to an accounting in Surrogate's Court, and in the absence of any controversy as to the validity of the assignment, is entitled to a decree awarding to him the payment of such legacy. court. When the receiver in this case qualified, the property of the judgment debtor became vested in him by operation of law. § 2469, Code Civ. Pro. His title to the legacy in question, or at least to so much of it as was necessary to pay the amount due the receiver and the expenses of the receivership, was as absolute as though the legatee had made a voluntary transfer of the legacy to him. He was, in fact, an assignee of the legacy by operation of law, and hence comes within the meaning of the term "assigns as used in section 2743, referred to above. He was, therefore, a proper party to the proceedings before the surrogate and had a standing in that court. It was his right and privilege to avail himself of all the advantages which the law affords to litigants in such We think the surrogate erred in excluding evidence of the probable expenses of the receivership, and in not awarding the receiver a sufficient sum to cover such expense. But for this error of the surrogate if it be error - the receiver had his remedy by appeal. He did not see fit to avail himself of that remedy. On the contrary, he accepted the sum awarded him by the decree and executed a satisfaction thereof. He now asks to have the judgment debtor punished as for a contempt for refusing to pay over to him. $50 of the moneys paid to her pursuant to the surrogate's decree. We cannot see our way clear to make such an order. The money was paid to the judgment debtor pursuant to a decree of the surrogate in a proceeding for an accounting, of which that court had jurisdiction, and to which proceeding the receiver was a party and was heard as to his rights. The judgment debtor had a right to assume that the decree awarded to the receiver all he was entitled to; and, until the contrary was made clear to her by a reversal of that decree, or by an order or decision of some court, she is not chargeable with contempt in refusing to recognize the receiver's claim. Whether the receiver's only remedy was by appeal from the surrogate's decree, or whether, upon the judgment debtor's refusal to pay over the $50, he might not have procured an ex parte order from the County Court, requiring her to show cause why she should Misc.] Supreme Court, April, 1896. not pay the same, and, in the meantime, restraining her from making any disposition thereof, are interesting questions, but as they are not before us we do not pass upon them. The motion is denied, but without costs. Motion denied, without costs. ADOLPH FLEISCHMAN, Plaintiff, v. BARBARA YAGEL, Defendant. (Supreme Court, Otsego Special Term, April, 1896.) Where the order for a new trial made upon a case and exceptions does not show the grounds, it will be presumed that the new trial was granted because the verdict was against the weight of evidence, or that, in the opinion of the trial court, substantial justice will be promoted thereby. The costs after notice of trial, payment of which is imposed as a condition of granting a new trial, are the costs of the trial, and do not include the statutory costs after notice of trial or term fees. 3. Same. Where a new trial is granted upon a case and exceptions on condition of the payment of costs after notice of trial, such costs include costs for making and serving amendments to the case and before and for argument of the motion for a new trial, but not costs of an appeal from the judgment previously taken, where an action to enforce the costs on appeal is pending. MOTION for retaxation of costs. W. J. Palmer, for plaintiff. Wagner & Fisher, for defendant. FORBES, J. This is a motion for a new taxation of costs. An appeal to this court is taken by the attorneys of each of the parties, and it is claimed by each that the taxation made by the clerk of Otsego county is erroneous. The plaintiff recovered a verdict of $228 damages against the defendant, at the Otsego Circuit, on the 1st day of March, 1892.' Supreme Court, April, 1896. [Vol. 16. At the same term a motion was made by the defendant's attor neys for a new trial upon the minutes; that motion was entertained, to be heard upon a case and exceptions. The plaintiff was permitted to tax his costs, enter his judgment, and then a stay was granted to make a case and exceptions. The defendant, however, appealed alone from that judgment. Upon a motion, on the part of the plaintiff, at the General Term, there being nothing for review except the judgment-roll, the judgment was affirmed, with costs; and that order was duly entered and docketed in the clerk's office of the county of Otsego. A motion was thereafter made, on the part of the defendant, for leave to make and serve a case and exceptions. This motion was granted upon certain conditions, which were complied with. The proposed case and exceptions were made, amendments were proposed thereto, and the case was finally settled and brought on for a hearing at chambers, before the judge who held the circuit. A new trial was granted to the defendant, " upon the payment of the costs and disbursements of said action after notice of trial," and such costs and disbursements were ordered taxed by the clerk of Otsego county. On the 14th day of February, 1896, the clerk taxed said costs at the sum of $174.04. From that taxation these appeals were taken. The clerk allowed all of the items of costs presented by the plaintiff, except the items of the motion for a new trial upon the case and exceptions; before argument, $20; for argument, $40. In the bill of costs taxed by the clerk are the following items: "Costs after and before trial, $15; motion costs awarded January 31, 1895, $10; term fees, June, 1893, and October, 1893, $20; appeal to the General Term, before argument, $20; for argument, $40; costs of the motion to strike the case from the General Term calendar, $10." Upon the judgment for costs at the General Term, an action was commenced, by the plaintiff, to set aside certain conveyances of real estate made by the defendant, and that action is still undetermined. The question presented upon this appeal is this: To what costs is the plaintiff entitled upon the granting of the motion for a new trial upon the case and exceptions? It would seem to the casual observer that question had been fully settled under the decisions in this State, but I find no case reported specifically pointing out what those items of costs should be. The Misc.] Supreme Court, April, 1896. courts seem to have settled the proposition that, as a condition upon granting a motion for a new trial upon a case and exceptions, or upon the minutes, when the new trial rests in the discretion of the court, as against the weight of evidence, for a mistake of the jury, or when substantial justice requires a new trial to be granted, the party receiving the favor must pay all of the costs and disbursements after notice of trial, Bailey v. Park, 5 Hun, 41; Kelley v. Frazier, 27 id. 314; Mahar v. Simmons, 47 id. 479; O'Brien v. Long, 49 id. 80; Sewell v. Lathrop, 67 id. 651; Young v. Stone, 77 id. 395; Peck v. Fonda, J. & G. R. R. Co., 25 N. Y. St. Rep. 95; O'Shea v. McLear, 15 Civ. Pro. R. 69. This condition is based upon the theory that the party against whom the favor is granted shall be fully restored to all of his rights as they existed at the Circuit before the trial. O'Shea v. McLear, 15 Civ. Pro. R. 69; Brown v. Foster, 1 App. Div. 578. This theory presupposes the facts: That the cause is at issue; that it has been noticed for trial; placed upon the calendar at the Circuit; that witnesses have been subpoenaed to try the question of fact, and that the cause is ready for trial when reached upon the calendar. Upon this assumption, what costs are to be paid as a condition for granting a new trial? The order should show the grounds upon which a new trial is granted. Supreme Court Rule 31. In case the order does not show the grounds, it will be presumed that the new trial was granted because the verdict was against the weight of evidence, or that, in the opinion of the trial court, substantial justice will be promoted thereby. Young v. Stone, 77 Hun, 395; Glassford v. Lewis, 82 id. 46; Grening v. Malcom, 83 id. 9. And unless there has been an abuse of discretion, that order will be sustained. Authorities supra. The order in question provides for the "Payment, by the defendant, of the costs and disbursements of said action after notice of trial." Upon this appeal no objection is raised to the item of $15 after notice of trial; and the appeal, on the part of the defendant, admits that item as correctly taxed, and it must, therefore, be allowed. Cuyler v. Coats, 10 How. Pr. 141; Toll v. Thomas, 15 id. 315; People ex rel. Lumley v. Lewis, 28 id. 159; S. C. affirmed, Id. 470. Supreme Court, April, 1896. [Vol. 18. As an original proposition, it is extremely doubtful whether that item should be covered by the order granting a new trial; some of the earlier authorities, however, hold the doctrine otherwise. Mitchell v. Westervelt, 6 How. Pr. 265; S. C. affirmed, Id. 311; Dewey v. Stewart, 6 id. 45; Keil v. Rice, 24 id. 228. Noticing a cause for trial is a necessary preliminary step, and this step must be taken by each of the parties desiring to bring the case on for trial at the Circuit. That item of costs was earned when the case was first noticed for trial, at the June term in 1893. No additional right accrued to this item of costs after that time down to the time of the trial of the cause at the Circuit. And had that item been objected to, this court would be inclined to strike it out, for the reason that the rights of the parties have not been changed since that item of costs accrued. The words "after notice of trial" must be construed to mean from and after notice of trial, excluding that item, and commencing with the first step thereafter taken, the first costs thereafter accruing being the costs of the trial. O'Shea v. McLear, 15 Civ. Pro. 69; Fealy v. Bull, 71 Hun, 402; Brown v. Foster, 1 App. Div. 578. The same position must be adhered to with reference to the term fees of June and October, 1893, and those items must be stricken out. Sewell v. Lathrop, 67 Hun, 651, and cases there cited. The case of Young v. Stone, supra, seems to have left the question still in doubt. The costs of the motion January 31, 1895, were determined by the order therein entered, and they become, in effect, collectible by virtue of that order, and may be enforced unr it. Hazzard v. Wilson, 3 Abb. N. C. 50; Lyons v. Murat, 54 How. Pr. 23. Section 779, Code of Civil Procedure, stays all proceedings on the part of the defendant until those costs are paid, unless waived by the plaintiff. The item of $10 for making and serving amendments to the case must be allowed. Hossley v. Colerick, 3 How. Pr. (N. S.) 169. The item of $20 before argument, and the item of $40 for argument, for a new trial on a case and exceptions, are fairly within the purview of the order and must be allowed, upon the theory that the plaintiff cannot be placed in the same position as |