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Whitney v. Roe

27 N.Y.S. 511 Court N.Y. Gen. Term Decision date 1894-02-15 English

Delivered by MARTIN, J.

Contents

Majority

p. 511
(75 Hun, 508.)
WHITNEY v. ROE.
(Supreme Court, General Term, Fourth Department
February 15, 1894.)

Headnote

1. Costs—Disbursements—Stenographer’s Notes.
Fees paid a stenographer for a copy of his notes obtained for the purpose of making a motion for a new trial on the minutes are not taxable as a disbursement in an action in the county court, unless it is according to the practice of such court, there being no express- statutory authority.
2. Same—Review oe Taxation.
Where the right to tax an item as a disbursement of an action depends on the practice of the court in which the action is brought, the refusal of the court to tax such item will not be disturbed on appeal, in the absence of evidence as to the practice of the court
p. 512
Appeal from Chemung county court.
Action by James Whitney against John C. Roe. From an order striking out an item of the bill of costs as taxed, plaintiff appeals. Affirmed.
Argued before HARDIN, P. J, and MARTIN and MERWIN, JJ.
Dailey & Bentley, for appellant.
Robertson, Smith & Bull, for respondent.

This is an appeal from an order made by the Che-mung county court, striking from the bill of costs herein as taxed by the clerk the sum of $36, which was allowed for stenographer’s fees paid for the minutes of a preceding trial. The appellant insists that this item was properly taxed, for the reason that the minutes were ordered by the court to be used on the hearing of a motion for a new trial made on the minutes of the trial judge. In this case there had been a trial by jury, and a verdict rendered in favor of the defendant. The plaintiff then moved for a new trial on the minutes, on the ground that the verdict was against the evidence, and on the various exceptions taken during the trial. This motion was entertained by the court, and a new trial was subsequently granted. In deciding the motion which resulted in the order appealed from, the court, it seems, assumed the facts to be as stated in the plaintiff’s affidavits, which were that when the court entertained the motion for a new trial it stated that it would be necessary to have a copy of the stenographer’s minutes of the evidence made for the purpose of such motion; that a copy was made on the application of the plaintiff, and used by the court and both parties in preparing, arguing, and deciding that motion, and also used in all the subsequent stages of the action, and was procured because the court so ordered; and that the plaintiff paid the official stenographer therefor the sum of $36.36. Assuming these facts, the court held that the sum thus paid was not taxable according to the course and practice of the county court. “At common law, neither costs nor disbursements were allowed to the prevailing party in any case, and their allowance has always been regulated by statute. Unless, therefore, the plaintiff can point to some statute authorizing the clerk to allow and tax this item, the decision below is right.” Society v. Hughes, 125 N. Y. 106 , 108, 26 N. E. 1 . The only statute pointed out by the appellant, and the one under which he claims that this item is taxable, is section 3256 of the Code of Civil Procedure. While this section was amended in March, 1892, (Laws 1892, c. 185,) so as to include “stenographers’ fees for minutes of testimony before a court, judge or referee” among the disbursements that might be taxed, yet on May 14th of the same year an act was passed again amending that section by omitting the provision above quoted. Laws 1892, c. 595. As it was provided by each of these acts that it should take effect September 1, 1892, the act permitting such fees to be taxed never in fact went into operation. Griggs v. Guinn, (Super. N. Y.) 21 N. Y. Supp. 451 . Section 3256, as it now stands, and as it

p. 513
stood when the question in this case arose, so far as applicable thereto, after enumerating certain fees or disbursements that may be taxed, provides: “And such other reasonable and necessary expenses as are taxable according to the course and practice of the court or by express provision of law.” It is not contended that there is any express provision of law which authorizes the taxation of stenographer’s fees under the circumstances which existed in this case; hence the question presented is whether they were taxable as reasonable and necessary expenses according to the course and practice of the court in which the action was tried. There have been numerous decisions in the supreme court and courts other than the county court as to when stenographer’s fees might be taxed as a disbursement in an action, but we have been cited to and have found no case where the precise question involved upon this appeal has been decided. While it has been held that in the supreme court stenographer’s fees might be taxed where a copy of the minutes is necessary to make a case or a bill of exceptions, (Varnum v. Wheeler, 9 Civil Proc. R 421,) and where a copy of the minutes was necessary to enable the party procuring them to prepare amendments to a case, (Sebley v. Nichols, 32 How. Pr. 182 ; Stevens v. Railroad Co., [Super. N. Y.] 9 N. Y. Supp. 707 ,) but upon this question the authorities are conflicting, (Pfaudler, etc., Co. v. Sargent, 43 Hun, 154 ,) yet we have found no case in the supreme court or any other where it has been held that, where a copy of the stenographer’s notes had been obtained for the purpose of making a motion for a new trial on the minutes, the fees paid the stenographer for making the same could be taxed as a disbursement in the action. The question, however, in this case is not whether the stenographer’s fees could be taxed according to the course and practice of the supreme court, but is whether they are taxable according to the course and practice of the county court. There are many cases where disbursements are paid by an attorney for the benefit of his client which are not taxable against the adverse party as costs in a case, but which may be properly allowed to the attorney as against his client. Hovey v. Hovey, 5 Paige, 551; Society v. Hughes, 125 N. Y. 109 , 26 N. E. 1 . That the item in question in this case was taxable under the practice as it existed in the county court was not made to appear either by evidence or authority. Indeed, there is nothing before us' showing or tending to show that any such practice has ever existed in the Chemung or any other county court. Under these circumstances we do not see how we can properly determine that such a practice existed, and that it was disregarded by the court below in granting the order appealed from. It must be presumed that the county court was familiar with its own practice in this respect. That court was in a position to know, and could determine from its own knowledge, and without any other evidence, whether the practice of that court required it to allow or to disallow such an item. We are not presumed to know as well as that court the practice which prevails therein in such cases. Society v. Hughes, 125 N. Y. 106 , 110, 26 N. E. 1 . It is not, we think,
p. 514
within the province of this court to determine what course and practice should be adopted or pursued in this respect by the county court. If no established practice existed which would justify the allowance of the item in question, then it was properly disallowed, as it was only such reasonable and necessary expenses as were in fact taxable according to the course and practice of that court that could have been allowed under the provisions of section 3256. We are of the opinion that, in the absence of any evidence or authority which tends to show that the item in question was taxable according to the course and practice of the county court, it must be presumed that the court below followed the practice as it existed in that court, and that it was not taxable according to such practice, and hence that the order appealed from should be affirmed. Order affirmed, with costs. All concur.

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