Johnson v. Chappell — 7 Daly (N.Y.) 43

Majority

p. 43

Tilman S. Johnson et al. Respondents, against George A. Chappell et al. Appellants.

(Decided upon the argument January 11th, 1877,

opinion filed February 5th, 1877.)

Headnote

Under Sec. 307 of the Code of Procedure (old) no more than ten dollars costs can be allowed for drawing interrogatories to annex to a commission, although more-"than one set of interrogatories may be drawn and annexed.

Appeal from an order made by Chief Justice Charles P. Daly, affirming the decision of the clerk on taxation of costs.

One commission was issued in the action, to which was annexed four separate sets of interrogatories,—one set for each of four witnesses to be examined thereunder. The clerk in taxing the plaintiffs’ costs allowed forty dollars as

p. 44

«costs for drawing said interrogatories, being ten dollars for each set. The defendants claimed that but ten dollars should be allowed for drawing all.

N. B. Cooke, for appellant.

T. H. & W. L. Van Derzee, for respondents.

This is an appeal from an order affirming the decision of the clerk, on taxation of costs in allowing «charges of ten dollars for each set of interrogatories annexed. to a single commission. Four witnesses were examined, and separate interrogatories were annexed for the examination of each witness. The allowance beyond ten dollars for the whole set of interrogatories was, in my opinion, erroneous. The language of Sec. 307 of the Code appears to me •explicit “ for attending upon and taking the deposition of a witness conditionally or attending to perpetuate his testimony,” indicating the allowance to be distributive as to each attendance for the examination of each witness—and then “ for drawing interrogatories to annex to a commission for the taking of testimony, ten dollars.” This allowance is not for the drawing of each interrogatory or an interrogatory, but 6 entirely for the drawing (collectively) of (all) the interrogatories to be annexed to a commission.

This is in accordance with the views of the general “term of the Superior Court (38 Supr. C. R. [6 J. & S.] 4,) and of Judge Lawrence, in Bumstead v. Hoadley (Daily Reg. Dec. 19, 1876). The right to costs is “ strictissimi juris,” but it seems unnecessary, in this case, to apply that principle, as the intent seems clear. The order should be reversed and the allowance for all the interrogatories annexed to a separate or single commission reduced to $10.

Costs and disbursements of appeal allowed appellant.

Labbemobe, J., concurred.

Ordered accordingly.