121 Misc. 258 | N.Y. Sup. Ct. | 1923
Defendant makes this motion to review a retaxation of costs made by the taxing officer. Defendant appeared on the retaxation and filed written objections to certain items of the bill of costs. Some of the objections were allowed by the taxing officer and some were disallowed. No claim is made for a review of the objections which were allowed and they will not be considered here.
The first objection urged is to the allowance of the item “ attending and taking deposition, $185.30.” It appears from the proof that this item includes the expense of the plaintiff’s and defendant’s attorneys in going to and from .Cleveland, O., where depositions were taken, and while staying in that city. The amount of the expense of defendant’s attorneys, $65, included therein was paid
In regard to the balance of the item, the railroad fare and hotel bills of plaintiff’s attorney in attending the taking of this deposition, a different question arises. There is no question but that the recovery of costs and disbursements is entirely regulated by statute, and unless there is a statute authorizing the particular item, it cannot be taxed. E. L. A. Society v. Hughes, 125 N. Y. 106. It cannot be taxed as costs, as that is provided by section 1504 of the Civil Practice Act: “ h. For taking the deposition in a court of record of a witness, * * * ten dollars,” and that sum is already included in the bill of costs, as retaxed. If considered as a disbursement it must be authorized by section 1518 of the Civil Practice Act, where the allowable disbursements are scheduled. The only direct reference to expenses of commissions to take testimony (subd. 2) does not apply. It might well be said that the application of the maxim expressio unius est exclusio alterius would require the holding that the inclusion in the schedule of allowable disbursements of the compensation of commissioners would preclude the allowing of any further disbursements in the same manner by reason of the general clause, but it is not necessary to put the decision upon that ground. If allowed at all it must be included in subdivision 10: “ Such other reasonable and necessary expenses as are taxable according to the course and practice of the court or by express provision of law.” There is no express provision of law which is applicable and recourse must be had to the course and practice of the court. That is to be determined by the knowledge of the court of its own practice, as illumined by adjudicated cases. As stated
The course and practice of the court has always been to require a distinct statutory authority for a taxable disbursement. Under the law as it existed prior to the Code of Procedure it was held that the expenses of executing a commission to examine witnesses was not an allowable disbursement. Kenney v. Vanhorne, 2 Johns. 107. The Code of Procedure repealed all laws establishing or regulating costs or fees of attorneys, but provided for the allowance of certain sums as costs by way of indemnity to the prevailing party for his expenses in the action, and also the “ necessary disbursements and fees of officers allowed by law,” including the compensation of referees and the expense of printing the papers upon an appeal. Code of Procedure, §§ 303, 311. Under this statute it was held that the money paid to a commissioner to take testimony in another state could not be allowed. Perry v. Griffin, 7 How. Pr. 263. A contrary result was reached in Finch v. Calvert, 13 How. Pr. 13, where those sections of the Code were construed to allow all actual necessary disbursements, including in that case the necessary expenses of éxecuting a commission in a foreign state. That decision was made in 1856, and at the very next session of the legislature section 311 was amended so as to read: “ the necessary disbursements, including the fee of officers allowed by law, the fees of witnesses, the reasonable compensation of commissioners in taking depositions, the fees of referees and the expenses' of printing the papers for any hearing when required by a rule of the court.” This very much weakened the authority of Finch v. Calvert, supra, in determining the legislative intent to be to indemnify the successful party for all necessary disbursements in the action, by expressly enumerating what disbursements could be allowed, and in the case of commissions to take testimony limiting the taxable disbursements to “ reasonable compensation of commissioners.”
This view of the effect of the amendment was reflected in the subsequent case of Dunham v. Sherman, 19 How. Pr. 572, where the compensation of the commissioner was allowed, but the charges
There is nothing in the case of Simpson v. Rowan, 13 Civ. Pro. Rep. 206, by which it can be determined whether anything further was allowed than the actual compensation of the commissioner. In Reichel v. N. Y. C. R. R. Co., 18 Civ. Pro. Rep. 248, the effort was made to limit the compensation of the commissioner, who under the law under which the testimony was taken, as it then existed was termed a “ referee,” to the fees allowed by another section of the Code to referees; but the court held that he was in effect a commissioner to take testimony, and that the prevailing party was entitled to tax his reasonable compensation, which included his expenses in traveling to the place where the testimony was taken. The only other case which I have been able to discover is Pyne v. National S. S. Co., Ltd., 18 N. Y. Supp. 166. There the only sum allowed was the compensation paid the commissioner.
As no authority can be found for the taxation of this item, it must be disallowed.
The objection to the term fees is based upon the allegation that the case was postponed at each of the terms upon the application of the plaintiff. It also appears that the reason for asking a postponement was that the testimony by deposition had not been taken or returned. No question is made but that the case was regularly upon the calendar for the terms claimed. When a case is at issue it must necessarily go on the 'calendar for trial, and by force of the statute it appears upon the calendars of subsequent terms until disposed of. That apparently is all that is required to entitle the prevailing party to the term fee. Civ. Prac. Act, § 1504; Crim v. Drain, 64 App. Div. 581; Deyo v. Morss, 21 Misc. Rep. 497. The case of Hinman v. Bergen, 5 How. Pr. 245, cannot be considered an authority to the contrary. It was decided with reference to the language of the Code of- Procedure, which is materially different from the Civil Practice Act, and the reasoning of the opinion shows that the result was reached for the reason that the Code expressly gives those sums as an indemnity to the prevailing party, and if the postponement was upon his request, he suffered no loss for which he was entitled to indemnity. No such language now appears in the Civil Practice Act. The objection to the term, fees is overruled.
Objection is made to the fee of $500 paid to the commissioner for taking the depositions. The statute (Civ. Prac. Act, § 1518) provides that the party to whom costs are awarded in an action is entitled to include his necessary disbursements as therein enumerated including “ the reasonable compensation of commissioners
It appears from the proof filed before the taxing officer that the actual taking of testimony before the commissioner consumed three days, during one of which the session was continued into the evening; the testimony was actually taken and written out by a stenographer, and amounted to 314 pages, and some time was spent by the commissioner in familiarizing himself with the law and in supervising the subpoenaing of witnesses, and in preparing and returning the depositions. A large number of exhibits were produced during the taking of the testimony and marked for identification by the commissioner, but by stipulation of the parties, they were retained by counsel and not attached to the commission, and by a similar stipulation, the reading of the testimony to the witnesses and their signature thereto was waived. In his bill the commissioner only claims to have spent five days in the performance of his duties.
The legislature has not defined the phrase “ reasonable compensation,” but it is significant that in the same portion of the act
The remaining objection is to the fees paid the stenographer at the taking of the deposition. The rule is that the fees of a stenographer in a proceeding such as this are not taxable, unless rendered with the consent of the parties sought to be charged. Van Valkenburgh v. Bishop; 164 N. Y. Stipp. 86. While it does not appear positively in the proof that defendant consented to that employment, the circumstances are such that consent may be fairly inferred, and no objection is made upon that ground, the only question being as to the amount of the fee paid. There is no dispute that the amount claimed was paid. The stenographer took the minutes, transcribed them and furnished one copy to the commissioner, which was used by him in making his return. An extra copy was furnished to each party, Defendant paid for his copy, and the plaintiff included the cost of Ms copy in the bill of costs as taxed, but that amount was stricken out upon the retaxation, the amount allowed being the per diem charge for taking the minutes and the folio charge for the commissioner’s copy, with certain incidental items of expense which are not questioned.
The stenographer was an official court stenographer at Cleveland, and there is no proof that the charge made by him was not at the rate prevailing there. It is true that the rate is larger per folio than that fixed by law in this state, and the per diem is larger than that for wMch competent service can be obtained in tMs judicial district, but I cannot say upon the proof before me that the charge is exorbitant and unreasonable.
The objection to this item is overruled.
An order may be prepared in accordance with the foregoing memorandum. If not agreed upon, settle on two days’ notice.
Ordered accordingly.