Valk v. Erie Railroad — 112 N.Y.S. 792

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p. 792

VALK et al. v. ERIE R. CO.

(Supreme Court, Appellate Division, First Department.

November 6, 1908.)

Headnote

1. Costs (§ 185*)—Witnesses’ Mileage—Allowance.

Defendant was not entitled to tax mileage of his witnesses upon the possibility that defendant might be called upon to pay it, where the witnesses traveled on passes issued by defendant and demanded no mileage.

[Ed. Note.—For other cases, see Costs, Dec. Dig. § 185.*]

2. Costs (§ 154*)—Commissioner’s Fees—Allowance Improper.

It was improper to tax commissioner’s fees as costs, where no order appointing a commissioner was made, but by consent depositions were taken in the office of defendant’s attorneys; a notary public in such attorneys’ employ administering the oaths to the -witnesses, but doing nothing else, and where each attorney had his own stenographer present, who took down the testimony, which was not signed by the witnesses, and no agree-

*For other cases see same 'topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes

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ment was made as to the payment of the stenographers’ fees; the notaries being in no sense commissioners.

[Ed. Note.—For other cases, see Costs, Cent. Dig. § 602; Dec. Dig. § 154.*]

*For other oases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes

3. Costs (§ 174*)—Disbursements—Notaries’ Fees—Reasonableness.

$23.20 was an unreasonable allowance to notaries for administering oaths to witnesses.

[Ed. Note.-—For other cases, see Costs, Dec. Dig. § 174.*] •

Appeal from Special Term.

Action by Edward Valk and others against the Erie Railroad Company. Erom an order reviewing taxation of costs, all parties appeal. Order affirmed as to defendant’s appeal, reversed as to plaintiffs’ appeal, and item disallowed.

Argued before PATTERSON, P. J., and INGRAHAM, LAUGH-LIN, CLARKE, and SCOTT, JJ.

Stanley H. Molleson, for plaintiffs.

Ogden L. Mills, for defendant.

Both parties appeal from an order made upon review of the clerk’s taxation of costs. The defendant appeals from so much of the order as disallows the mileage of eight witnesses summoned to the city of New York from Buffalo, and the plaintiffs appeal from so much of the order as denied their motion to strike from the bill of costs a sum allowed for commissioner’s fees.

The action involved transactions in Buffalo, and required the attendance of witnesses from that city. The defendant sought to tax mileage, at the rate of $33.84 each, for eight witnesses. A majority of these witnesses either now are, or recently have been, in defendant’s employ, while another is in the employ of a lessee of defendant. The other two are in the employ of other railroad companies. It is conceded that all of these witnesses traveled on free passes issued by defendant, and that defendant has paid no mileage or other sum to any of them, and that no demand therefor has been made. The only plea by which the allowance is sought to be enforced is that perhaps the defendant may hereafter be called upon to pay the mileage. The improbability of such a demand, unless the defendant shall invite it-in order to mulct the plaintiffs, is obvious. This item was properly disallowed.

The court should, however, have gone further, and have stricken out the sum allowed for commissioner’s fees. No order appointing a commission was made, but by consent the depositions of certain witnesses were taken in the office of defendant’s attorneys. A notary public in the employ of such attorneys administered the oaths to the witnesses, but did nothing else. Each attorney had his own stenographer present, who took down the testimony, which was not signed by the witnesses. No agreement was made as to the payment of the stenographers’ fees. Eor the fees of the notaries who administered the oaths to the witnesses the sum of $23.20 has been allowed. It should have been disallowed. The notaries were in no sense commis

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sioners, and, even if they are to be so considered, section 3256 of the Code of Civil Procedure provides that they shall be entitled to “reasonable compensation.” For the services they performed the allowance was unreasonable.

The order so far as appealed from by the defendant is affirmed, and so far as appealed from by the plaintiff is reversed, and the item of $23.20 is disallowed, with $10 costs and disbursements to the plaintiff appellant. All concur.