Randall v. Morning Journal Ass'n — 49 N.Y.S. 1064

Majority

p. 1064

RANDALL v. MORNING JOURNAL ASS’N.

(Supreme Court, Appellate Term.

February 28, 1898.)

Headnote

Costs—Taxation—Compensation of Expert Witness.

Extra compensation paid to an expert witness, in excess of the regular witness fees fixed by Consol. Act, § 1370, cannot be taxed in an action in the district court.

Appeal from district court.

Action by Daniel J. Randall against the Morning Journal Association. From the taxation of costs, plaintiff appeals.

Modified.

Argued before BEEKMAN, P. J., and GILDERSLEEVE and GIEGERICH, JJ.

H. J. Hindes, for appellant.

Einstein & Townsend, for respondent

The question brought up for review concerns the power of the court below, in adjusting the costs and disbursements of the action, to tax and allow to the respondent the sum of $10 paid by it for the services of an expert witness who testified for it on the trial. There is no authority for such an allowance. The fees of witnesses attending the trial in a district court are fixed by section 1370 of the New York City consolidation act, and only such as the statute sanctions can be allowed. Although it may be necessary, in order to secure expert evidence, to pay the witness compensation for the service which is required of him, outside of the allowance prescribed by law for his attendance, it is well settled that the sum so paid cannot be included in the taxable disbursements of the action. Matter of Bender’s Will, 86 Hun, 570 , 33 N. Y. Supp. 907 .

Judgment modified, deducting therefrom the sum of $10, and as so modified affirmed, without costs. All concur.