16 How. Pr. 91 | N.Y. Sup. Ct. | 1858
The action was brought by the president of the Bank of Utica, against a number of persons in dif-' ferent parts of the state, who were individual creditors of Russell & Van Valen, also defendants; the bank claiming that Russell & Van Valen were copartners, and that debts due to the bank on certain drafts drawn by Van Valen and accepted by Russell, were a joint charge upon the assets of Russell & Van Valen. Van Valen didbusiness in his individual name, at Cortlandville, and Russell in his individual name, in the city of Hew-York. Russell and one of his creditors, Allen, appeared as defendants by the same attorney, though they put in separate answers. At the hearing before the referee, they examined some of these co-defendants as witnesses for them, and such co-defendants also gave evidence in their own behalf.
On the adjustment of the costs, the clerk allowed but three
As to witnesses’ fees, they are included in the necessary disbursements which the prevailing party has a right to have adjusted and inserted in his judgment. It does not follow that the co-defendant of a party to an action, will necessarily attend on its trial. If he does attend as a party, and during his attendance is examined as a witness, he cannot claim witness’s fees. The law allows him no compensation for his attendance as a party, except the specific charges for trial, &c. Those charges he is entitled to, whether he appears by attorney, or whether he prosecutes or defends in person.
. But if it be made to appear that such co-defendant attended solely as a witness, and not as a party, and would not otherwise have attended there as a witness, then it would be difficult to point out the difference between the disbursements to procure the attendance of the co-defendant or of any other material witness. Both disbursements would be necessary. In this case it does not appear from anything before me, that the co-defendants attended solely as witnesses. Without positive affirmative proof on this point, I think the inference should be that they attended as parties as well as witnesses. The clerk was right, therefore, in rejecting that item. ;