Ehle v. Bingham — 4 Hill & Den. 595

Majority

p. 595

Ehle vs. Bingham.

Headnote

Ah affidavit of the travel and attendance of witnesses is defective unless it state the name and place of residence of each witness, the distance travelled by him and the number of days that he actually attended.

A cause having been noticed for trial at the New-York circuit, was placed upon the day calendar, where it remained but one day; held, that witnesses residing in the city were entitled to fees for one day’s attendance only.

Fees paid to witnesses who do not attend in obedience to a subpoena, cannot be taxed as a part of the costs in the cause; the remedy of the 'party being by a suit to recover back the money paid.

Witnesses’ fees. On taxation of costs for the New-York 'circuit, the plaintiff made affidavit that the following persons were subpoenaed as witnesses, “ and probably travelled the distance, and actually attended as witnesses the number of days as hereinafter stated, viz.: S. Wolcott &c. [naming nine individuals ;] that two of said witnesses reside two hundred and thirty miles from court, and attended court twenty days each ; that one of said witnesses resides two hundred and thirty miles from court and was duly subpoenaed, and five dollars paid towards his fees to him, and five dollars additional fees paid on account of witness’ travelling expenses home by deponent on his way to New-York as a witness in this cause ; that one of said witnesses resides one hundred and twenty miles from court, and was duly subpoenaed as a witness in this cause and his fees as such witness to said city paid, as appears by the admission of said witness duly endorsed in his ow.n handwriting upon the subpoena hereto annexed; that four of said witnesses attended court twenty-six days each, and one of said witnesses attended eighteen days at said circuit.” The five last mentioned witnesses resided in the city of New-York, and it appeared that the cause was on the day calendar for said circuit for one day only. The defendant objected to the sufficiency of the affidavit. The taxing officer allowed for the travel of two witnesses, two hundred and thirty miles each, $36,80,

p. 596

and for the attendance of those witnesses, twenty days each, $20. For the five witnesses residing in New-York, he allowed only one day’s attendance each ; and he rejected the claim for fees paid to the witnesses who did not attend the circuit. Both parties moved for a re-taxation of the costs.

A. Taber, for the plaintiff.

T. B. Mitchell $• JY. Hill, Jr. for the defendant.

By the Court,

Charges for witnesses cannot be taxed, without an affidavit stating the distance they respectively travelled, and the days they actually attended. (2 R. S. 653, § 7.) For the purpose of satisfying this requirement, and detecting any false swearing, the affidavit should state the name and place of residence of each witness, the distance he had to travel to reach court, and the number of days that he actually attended as a witness in the particular cause. No other rule will effectually guard against over charges. This affidavit was insufficient, and the charges for the travel and attendance of the two witnesses, amounting to $36,80, were improperly allowed.

Only one day’s attendance was allowed for each of the city witnesses. That was right, both on the ground that the affidavit was defective, and because the cause was only on the day calendar for a single day.

The fees paid to witnesses who did not attend were properly disallowed. (Booth v. Smith, 5 Wend. 107 ; Anon. 3 Hill, 457 .) The plaintiff can recover back the moneyfrom the witnesses, and a penalty besides, unless there was some good excuse for not attending.

The plaintiff’s motion for a re-taxation must be denied, and that of the defendant granted.

Ordered accordingly.

Cases cited

Booth v. Smith 5 Wend. 107 N.Y. Sup. Ct. 1830-11-18 p. 596