Pyne v. National S. S. Co. — 18 N.Y.S. 166

Majority

p. 166

Pyne v. National S. S. Co., Limited.

(City Court of New York,

General Term.

March 10, 1892.)

Headnote

Costs—Deposition op Party during Illness.

It is proper to tax the costs incurred in taking plaintiff’s testimony under a commission because of her extreme illness, she having died before the trial, and it appearing that the judgment in favor of her administrator could not have been rendered without such testimony.

Appeal from special term.

Action by Samuel Pyne, administrator of Mary Pyne, deceased, against the National Steam-Ship Company, Limited, for value of goods lost. From an

p. 167

order retaxing costs, after a judgment for plaintiff, defendant appeals.

Affirmed.

Argued before Ehrlich, C. J., and Van Wyck and Fitzsimons, JJ.

John Chetioood, for appellant. Richards & Brown, for respondent.

This is an appeal from an order retaxing costs. This action is for value of goods lost by defendant, owned by Mary Pyne, who commenced the action. During its pendency she became dangerously ill. Her testimony was absolutely necessary in her behalf to enable her administrator to recover judgment herein. Because of her said illness a commission was issued to take her commission, which was done. Subsequently, and before the trial, she died from said sickness, and her testimony taken under the commission was used upon the trial by her administrator, the present plaintiff. The special term justice allowed, as an item of plaintiff’s expenses, the sum of $25, the amount paid the commission who took said Mary Pyne’s testimony, and from such order this appeal is taken. Under the circumstances, the allowance of said item was proper, as mentioned. Her testimony was essential to plaintiff’s success. Without it, judgment could not have been rendered for plaintiff. The testimony was not taken to suit plaintiff’s convenience, but because it was absolutely necessary to do so, and, in the manner in which it was done, no other course could have been pursued. Order appealed from affirmed, with costs. All concur.