In re Corwin — 6 Abb. N. Cas. 437

Majority

p. 437

MATTER OF CORWIN.

N. Y. Supreme Court, First Department;

Special Term and Chambers, March, 1879.

Headnote

Witness Fees.—Subpoena Duces Tecum.

The fee to be paid a witness, subpoenaed under a subptma duces tecum, is 50 cents.

The act of 1840 provided for but one class, including all witnesses, and prohibited any other fee.

Motion to re tax costs.

This was a petition by William T. Corwin, to vacate an assessment for paving a street in the city of New York.

On the taxation of costs the clerk allowed $1.25 for witness fee on subpoena duces tecum.^[1] To this the

p. 438

counsel for the corporation objected on the ground that 50 cents was all that the statutes allowed.

Thomas P. Wickes (William Q. Whitney, counsel to the corporation) for the motion.

The only fee which the statute prescribes is a fee of 50 cents. L 1840, c. 386, § 40, repeals § 33 of tit. 3 of c. 10 of part III. of the Revised Statutes. The provision of L. 1840, c. 386, § 8, is the only one in force (see R S. [6 ed.] § 26 of c. 10 of tit. 3 of part III. [643]. Also to the same substantial effect, Code Civ. Pro. § 852)

P. A. Hargous, opposed.

In this case the matter in dispute is small, but as the same principle applies to a number of cases, the corporation desires a formal decision. The item appealed from is the allowance of $1.25 for witness fees on a subpcena duces tecum.

Prior to the act of 1840, chapter 386, there were two classes of witness fees recognized and paid, the one 25 cents per day for attendance, and the other, under a duces tecum, $1.25. The act of 1840 provided for but one class, including all witnesses, and raised the allowance to 50 cents. That act prohibited any other fees.

It necessarily follows, that that is the only fee to be allowed by the act of 1840, that the clerk erred in allowing the $1.25, and that the taxation must be corrected.