Dunham v. Sherman — 11 Abb. Pr. 152

Majority

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DUNHAM a. SHERMAN.

JVew York Superior Court j

Special Term, October, 1860.

Headnote

Costs.—Commission to take Deposition.

In taxing costs in a cause, the prevailing party is entitled to include bis disbursements for fees of the commissioner, by whom testimony was taken under a commission.

He is not entitled to include witness-fees, other than according to the rate prescribed by our statute, except on showing that the fees of .witnesses in the country where the commission was taken, were regulated by law, and attendance could not be compelled without payment accordingly.

He is not entitled to include the charges of a solicitor employed abroad.

Appeal from the clerk’s taxation of costs.

In this cause a commission to take testimony in England had been obtained by plaintiff, and executed in the course of the proceedings. The plaintiff’s notice of taxation of costs, included as one item, commission-fees, $192.12, and his affidavit to disbursements, was merely in the ordinary form, that the foregoing disbursements have been, or may be necessarily made or incurred, in the action. The clerk allowed this against the objection of the defendant, who thereupon appealed to the court.

Benjamin Vaughan Abbott, for the defendant.

The clerk shall insert * * * the reasonable compensation of commissioner in taking depositions. * * * (Code, § 311.) The case of Finch a. Calvert ( 13 How. Pr., 13 ), which may be cited by the plaintiff, is no authority, as to solicitors’ fees, the decision having been made before the amendment of the Code, in 1857. In all cases the power conferred on a commissioner to take testimony is strictly personal, and he cannot delegate his authority. (1 Har. & Gill., 154.) It is submitted that under section 311 above, it must affirmatively appear that the compensation is reasonable. If, not, it should be disallowed

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(Shultz a. Whitney, 9 Abbotts’ Pr., 71), and especially when it is manifestly unreasonable. Judgment is given for $757. The costs, as taxed, are exclusive of disbursements, $82, with an allowance of $37.50, amounting to $119.50. This the Legislature have given to plaintiffs as a reasonable equivalent to their counsel’s charges for the whole litigation. The commissioner gets more for his labor than the plaintiff’s attorney. The referee’s bill is $107.50, at the rate of $5 the session (the law authorizing no more than $3, except by consent), for services running through nearly a year. It is no exaggeration to say he has performed ten times the labor of the commissioner, whose duties were little more than those of an amanuensis. Any thing besides, and a reasonable per diem compensation to the commissioner, is believed not to be taxable against the defendant. The witness-fees before commissioner cannot be allowed on the ordinary affidavit, and any such items on the part of plaintiff have never been offered to taxing officer. (See Case a. Price, 9 Abbotts’ Pr., 111.) “ The affidavit showing the disbursement, should also show the reasonableness of the charge, and that it is fair, just,” &c.

Robert D. Benedict, for the plaintiff.

The plaintiff sued out a commission to London, in which the defendant joined, so far as to exhibit cross-interrogatories. The commission was executed by a single commissioner, and it appears that the examination took place on the 8th and 9th days of December. His charge for executing it was £10 10s.

To this was added a bill of £28 18s. 8d., paid solicitor’s bill, including payment to witnesses, making together £39 8s. 8d., or $192.12, which has been allowed by the clerk. The bill of the solicitor is in detail, and contains, for payment to seven witnesses (one from Scotland, £8), the sum of £17 9s. The fees are £1 Is. to three witnesses ; £2 2s. to three witnesses, and the £8 to one. The remainder is for the services of the solicitor employed by the plaintiff to superintend the execution of the commission. It is made up of items for attendances on the commissioner, and on the witnesses, with sums paid for copies of the interrogatories and cross-interrogatories which some of

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the witnesses requested might he left with them for examination to refresh their recollection.

I. The commissioner’s fees are expressly allowed by the amendment of section 311 of the Code made in 1857. Justice Clerke has considered them proper, even before such amendment. (Calvert a. Finch, 13 How. Pr., 13 .)

II. The proper fees for the attendance of witnesses is also a necessary disbursement. I agree with Justice Smith in his views upon this point. (Case a. Price, 9 Abbotts’ Pr., 111.)

But a difficulty exists as to the measure of such allowance. I am prepared to say, that the attendance-fee allowed in our fee-bill (fifty cents), is proper to be taxed as to witnesses examined under a commission, and also the travelling-fees when the distance is over three miles, as therein prescribed ; on this basis, the charge of the witness from Scotland, and of any other of the witnesses, might be allowed, had the affidavit been sufficient. (Wheeler a. Lozee, 12 How. Pr., 448 , and cases.)

A witness travelling from another State, to be examined here, is entitled to his travelling-fees from the boundary line within the State, to the place of trial, the distance to be estimated by the nearest usual travelled route. (Wheeler a. Lozee, 12 How. Pr., 448 .)

I am inclined to think that if the fees of witnesses are regulated by the law of the country in which a commission is executed, and the attendance cannot be procured without payment of such fees, that should form the rule of allowance here. The case is not so before me as that I can pass upon the question.

III. There can be no ground for allowing the charges of the solicitor employed abroad. Had the attorney on record been present, he could have got nothing specially for the services. An allowance has been made in this case. Expenditures of this description must be borne by the party himself, as he bears counsel-fees.

The taxation must be readjusted, by allowing the commissioner’s fees, £10 1 0s., disallowing the solicitor’s charges for services, £11 9s. 8d., and also the £17 9s. for witnesses, but with liberty to the plaintiff to have the fees of witnesses adjusted upon the basis of the fee-bill of our State, as before pointed out.

Order for retaxation.