108 N.Y.S. 734 | N.Y. App. Div. | 1908
The plaintiff appeals from an order denying his motion for the retaxation of a bill of costs. . •
The action was tried at Special Term resulting.in a judgment for defendants, who were-represented by Albert Stickney, Esq.,'Charles I. jMcBnrney, Esq,, and Albert Stickney,- Jr., Esq., guardian ad litem for certain infant defendants. Each of .these gentlemen was awarded a separate hill of costs and a separate allowance. Upon-appeal to this court tlie judgment- was affirmed, one hill of costs ■ being allowed.
The affidavit of Mr. Albert Stickney, Jr., states that the respondents went into the trial in the firm belief that the appellant would carry the proceeding up to the Court of Appeals if defeated, and he gives the reasons for so believing. He then says: “-It was with bliis situation in view and in the belief and expectation that an appeal would be taken, and for the purpose of using such stenographer’s minutes in preparing amendments to the case on appeal that the minutes were ordered. It having been decided, to obtain such minutes, the stenographer was directed to furnish them from the outset of the trial, and they were furnished by him accordingly as they were written out.”
Since the decision of Ridabock v. Met. El. R. Co. (8 App. Div. 309) there has been no doubt that a copy of the stenographer’s minutes obtained for the purpose of preparing amendments toa proposed case on appeal is a taxable disbursement. If, therefore, the respondents had waited until after the trial and had then ordered a copy of the minutes solely for the purpose of preparing amendments to the proposed case, their right to tax the cost of the minutes could not be questioned. It is urged, however, that because the minutes were ordered during the progress o.f the trial, and used upon it, their cost cannot now be taxed, notwithstanding they were also used for preparing amendments to the case on appeal. Gallagher v. Baird (60 App. Div. 29) is cited as authority for that contention. That case arose under peculiar circumstances and involved among other things the construction of a stipulation between attorneys. Furthermore, it appeared that both appellant and respondent liad used the same copies, - and each had paid half the cost thereof, and it clearly appeared that the transcript had not been ordered by either party in the first instance but by the referee before whom the case was tried. Later a similar question arose in Bremer v. Manhattan R. Co. (51 Misc. Rep. 96 ; af£d. without opinion, 115 App. Div. 900). In that case, as in this, the plaintiffs’ attorney made affidavit that he had reason to believe that an appeal would be taken in any event, and that he ordered the minutes for the
Patterson, P. J.,. McLaughlin, Laughlin and Clarke, JJ., concurred.
Order modified as directed in opinion, and as so modified affirmed, without costs. Settle order on notice.
See 118 App. Div. 633.— [Rep.
See Code Civ. Proc. § 3311 — [Rep,