The defendant insists that the clerk was in error in taxing the item of ten dollars for trial occupying more than two days. The facts are undisputed, and both sides concede that'the question presented is a new one. That the case was actually on trial on the twenty-fourth and twenty-fifth days of May is not disputed, the controversy being as to whether the occurrences on May twenty-third were such as to warrant the conclusion that the case wras on *31trial upon that day also. The jury was examined by the plaintiff’s attorney, and was accepted on the twenty-third. Thereafter, on the same day, the attorney for the defendant examined the jury, and in the midst of such examination stated to the justice presiding that the counsel who was to try the action was not prepared to go on and desired an adjournment until the next day. The court then stated that counsel in the ease should consider themselves engaged for the trial of the action in that part of the court and the case considered on trial in that part. No objection was made by either party to such ruling. On May 24, 1904, there appeared in the Law Journal the following: “ Supreme Court— Trial Term, Part VII. Before MacLean, Judge — Goodkind v. Met. St. R’y. O. Horwitz for plaintiff; H. A. Robinson for defendant. Case unfinished.” Under these circumstances I think it quite clear that the clerk was right in considering that the trial began on the twenty-third and occupied more than two days.
Motion denied, with ten dollars costs.