Lalla v. Bulkley — 141 N.Y.S. 118

Majority

p. 118

(156 App. Div. 57.)

LALLA v. BULKLEY.

(Supreme Court, Appellate Division, Second Department.

March 28, 1913.)

Headnote

Costs (§ 184*)—Witness Fees—Unnecessary Witnesses.

A party cannot summon a number, oí witnesses solely on the theory that the court may make an erroneous ruling, which would necessitate the use of such witnesses in rebuttal, and is not entitled to costs for such witnesses.

[Ed. Note.—For other cases, see Costs, Cent. Dig. §§ 715-736; Dec. Dig. § 184.^[1] ]

Appeal from Special Term," Westchester County.

Action by Michael Lalla against Josiah W. Bulkley. From an order taxing costs as resettled by another order, plaintiff appeals. Affirmed as modified.

Argued before JENKS, P. J., and THOMAS, CARR, RICH, and STAPLETON, JJ.

Sydney A. Syme, of Mt. Vernon, for appellant.

Benjamin I. Taylor, of Port Chester, for respondent.

The same question is involved on this appeal as in that of Capozzi v. Bulkley, 141 N. Y. Supp. 117 , decided herewith, except that there was a further disallowance by the court at Special Term- of the sum of $30 taxed by the plaintiff for witness fees on the second trial in this case, which was had undér precisely the same circumstances as that in the Capozzi Case.

As to the question of disallowance of the witness fees in question, we think that the decision of the Special Term should not be disturbed. It does not sufficiently appear that these witnesses were material and necessary witnesses on the second trial. If they were in court, they were not sworn, and the explanation offered by the plaintiff’s attorney is that he had subpoenaed them for the purpose of rebutting certain evidence which he anticipated the defendant might offer at the trial. The defendant did offer such evidence, but it was excluded on the objection of the plaintiff’s attorney, so that there was no necessity for the said alleged witnesses being produced and sworn. We think that a party is not justified in subpoenaing a number of witnesses solely

p. 119

on the theory that the court may make an erroneous ruling which would result in a necessity for their use in rebuttal.

Order modified, by striking therefrom the provision which disallowed the taxation of the costs and disbursements of the first trial, and the taxation of the sum of $25 as costs after the order granting a new trial, and, as so modified, the order appealed from is affirmed, without costs.