Starkweather v. Sundstrom — 113 A.D. 401

Majority

p. 401

Horace P. Starkweather, Respondent, v. Charles Sundstrom and Frank M. Stratton, Appellants.

Third Department,

May 18, 1906.

Headnote

Costs — disbursements for procuring stenographer’s minutes to make amendments to proposed case are taxable—request that appellant loan copy not necessary.

Disbursements of a respondent in procuring the stenographer’s minutes in order to prepare amendments to a proposed case are properly taxed on affirmance of the judgment, although he did not first request the loan of the appellant’s copy. If the appellant would save himself from liability for such disbursements he must tender the minutes to the respondent.

p. 402

Appeal by the defendants, Charles Sundstrom. and another, from "an order of the Supreme Court, made at the Broome Special Term and entered in the office of the clerk of the county of Broomé on the 31st day of January, 1906, denying the defendants’ motion for a r.etaxation of costs-. ,

Thomas Watts and Abram F. Servin, for the appellants.

A. D. Wales, for the respondent.

The costs were taxed upon a judgment of the Appellate Division affirming a judgment of the court below.- Amongthe items of costs was seventy-eight dollars for procuring stenographer’s minutes to enable the plaintiff to" propose amendments.to the defendants’ proposed case. This item was objected to before the taxing officer “ on the ground that said item is illegal and; improper and cannot be properly retaxed or taxed as a disbursement, because the. defendants, were never requested to.lend their copy of the minutes to the plaintiff in order to prepare" amendments.” By reason of the requirement of rule 32 of the General Rules.of Practice* a-respondent* preparing amendments to a proposed case must refer to the stenographer’s minutes. That the, cost of procuring such minutes is a necesr sary disbursement which may be charged by-the respondent lias been settled at-least in' two departments, in Ridabock v. Metropolitan Elevated R. Co. ( 8 App. Div. 309 ) and in Park v. N. Y. C. & H. R. R. R. Co. (57 id. 69). In the Parle case'the respondent had souglit to procure the stenographer’s minutes from the appellant for the purpose of preparing his amendments to the proposed case,, but the appellant had refused to loan them to the respondent. That, fact • was mentioned as one of "the facts which gave point to the necessity of the disbursement.. It was not held in that case, however, that the "failure of the respondent to request the loan pf the stenographer’s minutes from the appellant would render the disbursement foV such minutes an unnecessary disbursement nor has • any case gone to this extent.’ . That such minutes aré necessary to "enable the defendant , "to prepare amendments to the appellant’s- proposed case, the appellant knew as well as the respondent. In fact, just what those amendments should be could only be ascertained, by reference to the.

p. 403

stenographers minutes. If the appellant would have saved himself from liability for such a disbursement, he could have tendered them to the respondent for'the purpose of preparing his amendments jus’t as easily as the respondent could have asked him for it. It is the appellant who is relieved from liability if the minutes are loaned to respondent to prepare the amendments to the proposed case. To hold that the disbursement'is' not a necessary one until the respondent has requested ■ the loan of the minutes from the appellant and beeii refused, would be to require the respondent to take more care to protect the appellant than would the appellant to protect himself.. The order should, therefore, be affirmed.

All concurred.

Order affirmed, with-ten dollars costs and disbursements-.

Cases cited

Ridabock v. Metropolitan Elevated Railway Co. 8 App. Div. 309 N.Y. App. Div. 1896-07-31 p. 402