Hyperlawhypertext legal database Vibbard v. Kinser Const. Co. 130 N.Y.S. 837

← Cases

Vibbard v. Kinser Const. Co.

130 N.Y.S. 837 Court N.Y. App. Div. Decision date 1911-06-28 English

Delivered by JOHN M. KELLOGG, J.

Contents

Majority

p. 837
VIBBARD v. KINSER CONST. CO.
(Supreme Court, Appellate Division, Third Department.
June 28, 1911.)

Headnote

1. Costs (§ 191[2] )—Disbursements—Referee’s Fee.
Where a referee was appointed at plaintiff’s instance to take the evidence of his testator before action brought, a fee of $10 for the referee’s services was properly allowed as disbursements.
[Ed. Note.—For other cases, see Costs, Cent. Dig. § 697; Dec. Dig. § 191.[2] )
2. Costs (§ 190[2] )—Disbursements—Transcript oil Testimony.
A dispute having arisen as to the testimony of a witness on a motion for a new trial on the judge’s minutes, the court directed a part of the-testimony of such witness transcribed. Plaintiff ordered a transcript of the entire testimony of the witness, but the stenographer furnished the minutes of the entire trial. On a new trial the evidence of another wit
p. 838
ness was read from the transcript, and the fees of the witness saved thereby were in excess of the cost of the minutes of his testimony on the first trial. Held, that plaintiff was only entitled to tax as a disbursement the cost of such part of the transcript as related to the testimony of the two witnesses.
[Ed. Note.—Por other cases, see Costs, Cent. Dig. §§ 660-662; Dec. Dig. § 190.[2] ]
Appeal from Special Term, Albany County.
Action by Dora Vibbard, as executrix of the will of Harry R. Vibbard, deceased, against the Kinser Construction Company. From an order denying defendant’s motion for reduction of costs, it appeals.
Affirmed in part and reversed in part.
See, also, 138 App. Div. 934 , 123 N. Y. Supp. 1146 .
Argued before SMITH, P. J., and KELLOGG, HOUGHTON, SEWELL and BETTS, JJ.
L. B. McKelvey, for appellant.
Walter A. Fullerton, for respondent.

The action was tried and a motion upon the judge’s minutes for a new trial was made and argued. A dispute arose as to the testimony of the witness Duprey. The court directed written briefs to be submitted and that counsel furnish that portion of the testimony of said witness which referred to the speed at which the crane was moving just prior to the time of the accident. Thereupon the plaintiff ordered the stenographer to furnish the testimony of Duprey; but the stenographer furnished the minutes of the entire trial. The testimony of Duprey was submitted to the court, and the plaintiff in his brief made numerous quotations from and references to the testimony of other witnesses.

The clerk included in the disbursements $55.29, the cost of the stenographer’s minutes, and $10, the fee of a referee who was appointed at the instance of the plaintiff to take the evidence of his testator before action brought.

[1] The Special Term refused to strike from the bill of costs these two items or to order a retaxation with reference thereto. As to the referee’s fees, I think the order is right. It is unnecessary to consider whether technically these fees are fixed by section 3296 or are to be fixed by the court under subdivision 3 of section 3251 of the Code of Civil Procedure. The Special Term, after hearing, refused to strike them out and therefore passed tipon their reasonableness and, having found them reasonable, was not required to order a re-taxation with reference to them.

We held at our last March term, in Federal Smelting Co. v. Security Steel & Iron Co., 129 N. Y. Supp. 1121 , that stenographer’s fees obtained for use upon another trial were not taxable, following Hudson v. Erie R. R. Co., 57 App. Div. 98 , 68 N. Y. Supp. 28 , and Herrmann v. Herrmann, 88 App. Div. 76 , 84 N. Y. Supp. 736 .

[2] In the case at bar, it was unnecessary to obtain the stenographer’s minutes for use upon the hearing of the motion for a new

p. 839
trial. The court had practically passed upon that subject by requiring only certain parts of Duprey’s testimony to be furnished. If the minutes, other than the parts of Duprey’s testimony required, were furnished by mistake, that is no reason why they should be taxed as a disbursement in the case, and the fact that the plaintiff referred to them in his brief does not change the situation. The $55.29 was, therefore, erroneously taxed by the clerk. The plaintiff, however, was authorized to tax as a disbursement the reasonable cost of the minutes of the testimony of D-uprey which was furnished.

Pursuant to stipulation, the evidence of the witness Banks was read upon the second trial from the stenographer’s minutes, and the amount of witness fees saved thereby is in excess of the cost of the minutes of his testimony upon the first trial. Under the circumstances, I think it is also proper to tax the fees of the stenographer in furnishing the testimony of this witness.

The order appealed from is affirmed as to the referee’s fees and reversed as to the stenographer’s fees, and the matter remitted to the county clerk, with direction to retax the stenographer’s fees allowing only the cost of the testimony of Duprey and Banks. No costs of this appeal are allowed. All concur.

Cases cited