11 N.J. Misc. 334 | N.J. | 1933
The matter is before us as on motion by defendant to retax costs, with depositions taken on rule. In June, 1931, a jury verdict of $283 was returned in favor of Marie Grande and against American Equitable Assurance Company upon what had originally been the seventh count of a complaint wherein other insureds as well as Marie Grande had been named as parties plaintiff and other insurers as well as the American Equitable Assurance Company had been named as parties defendant. After one trial resulting in a jury disagreement and several postponements of trial, the separate claim of Marie Grande against the named defendant for loss by fire to household furniture was severed from the remaining causes of action with the ultimate result above mentioned. Costs on the verdict were taxed by the clerk in favor of Marie Grande in the amount of $695.62. On this motion to^ retax the dispute arises over the allowances for witness fees.
The first argument advanced by American Equitable As
“Where application is made to the court * * * to adjourn or postpone a trial, the payment to the adverse party of a sum not exceeding ten dollars, if the parties reside in the same county, or a sum not exceeding fifteen dollars, if the parties reside in different counties, besides necessary disbursements, as hereinafter provided, already made or incurred, which are rendered ineffectual by the adjournment or postponement, may be required as a condition of granting the adjournment or postponement, and where no sum be so fixed the maximum sum, respectively, including said disbursements, shall be allowed.”
This section, by its terms, applies to a postponement made on the application of one or the other of the parties. On June 18th, 1928, there was an adjournment, according to the depositions, on the request of, or at the instance of, the attorney for the plaintiffs. The costs as heretofore taxed include $93.50 for witness fees on that day. We consider that under the statute the plaintiff was not entitled to that allowance and therefore it will be omitted in the retaxing. There were other adjournments, but we are unable to determine from any record before us that those adjournments were on the application of plaintiff or plaintiff’s attorney.
The next question is whether the defendant is chargeable, on the verdict in favor of Marie Grande, with the disbursements for subpoena and service fees made in connection with the trial that resulted in a jury disagreement. It is suggested that some of the witnesses were subpoenaed with respect to other counts in the complaint, but the proofs support a finding that the witnesses were called with respect to, and were material upon, the seventh count; and we are governed by these proofs.
Section 6 of the fee statute, supra, provides that: “* * *
Finally, it is said that the affidavit filed with the bill of costs as taxed by the clerk is insufficient in that it was made by another than the attorney of record and in that it does not specify the names of the witnesses or the specific distances traveled by the witnesses. We know of no requirement that the affidavit must be made by the attorney of record in person. The names of the witnesses seem to be no longer in issue as the actual attendance is not disputed. The mileage appears by depositions now in the proofs.
The costs are retaxed as on the original taxation, omitting therefrom, however, the item of $93.50 for subpoena fees on