Bremer v. Manhattan Railway Co.

99 N.Y.S. 746 | N.Y. Sup. Ct. | 1906

Giegerich, J.

The plaintiffs have appealed from the action of the clerk in refusing to allow an item of $138.25 paid by them for a copy of the stenographer’s minutes. The minutes were obtained after the trial was over, but before the decision was rendered and before the briefs were submitted. The _ laintiffs’ counsel makes an affidavit that he procured the minutes for the purpose of preparing amendment's to the case on appeal; that he does not usually order a copy of the minutes in actions against the elevated railroad, but that this was an exceptional case involving a question on which he knew that one side or the other would appeal. The defendants concede that in this department the. rule is to allow the taxation of the amount spent to procure a copy of the stenographer’s minutes for use in preparing ■ amendments to the proposed case (Ridabock v. Metropolitan El. R. Co., 8 App. Div. 309), but insists that here the minutes were procured not for that purpose, but for the purpose of preparing a brief. I am of the opinion that the item should have been taxed, x It was impossible, of course, for the plaintiffs’ counsel to know with certainty that an appeal would be taken; hut he bad reasons sufficient to himself for so believing; and it was for use on such an appeal that he ordered the minutes, and, except for such anticipated use, he would not have ordered them. The fact that the minutes were used by the plaintiffs’ attorney in the preparation of the brief, if such was the fact, has not increased the burden of the defendants, who are in no worse position than they would, have been had the plaintiffs waited until after the decision before procuring the minutes. The plaintiffs may have had an incidental benefit in the use of the minutes in making their brief, hut this benefit is not wholly gratuitous, because they took the risk of having to pay for the minutes themselves if the event proved that -they were mistaken in their anticipation that there would he an appeal. The case of Gallagher v. Baird, 60 App. Div. 29, was quite different from this. There the minutes.were used during the trial, and, so far as appears from the report, no claim was made that they were procured for the purpose of preparing amendments on appeal or that anticipation of such use formed any part of the original inducement to order them.

Motion granted, with ten dollars costs.