Sebley v. Nichols

32 How. Pr. 182 | N.Y. Sup. Ct. | 1866

Dissenting Opinion

Sutherland, J., dissented.

I am inclined to think that the twenty dollars paid by the attorney for the plaintiff for a copy of the stenographer’s minutes, cannot properly be called an expense or disbursement necessarily incurred in the action. It may have been convenient and even prudent for him to procure such copy, but I am inclined to think it cannot properly be said to have been necessary.

The special provision in section 256 of the Code, allowing" the expense, or one-half of the expense of the copy for the judge, as a disbursement by the prevailing party, tends to show this, I think. (See Hamilton agt. Butler, 30 How. Pr. R. 36.)

Upon the whole, though considering the affidavit of Mr. Brown, the attorney for the plaintiff, I do not consider the question free from doubt.

I think the twenty dollars paid for the copy of the stenographer’s minutes for the plaintiff or his attorney, should be deducted from the bill of costs as adjusted by the clerk, without costs to either party on this appeal.

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Lead Opinion

By the court, Clerke, J.

I think that whatever conduces ■ to the better prosecution of the controversy is necessary. "What prudence dictates is necessary ; without it the interests of the party would be unsafe.

Order of special term affirmed.

Barnard, J., concurred.