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Bormay v. Van Ness

56 N.Y.S. 640 Court N.Y. Sup. Ct. Decision date 1899-03-15 English

Delivered by McADAM, J.

Contents

Majority

p. 640
(26 Misc. Rep. 599.)
BORMAY v. VAN NESS et al.
(Supreme Court, Trial Term, New York County.
March 15, 1899.)

Headnote

Costs in Disbarment Proceedings—Stenographer’s Fees.
Where both parties in a proceeding to disbar an attorney, in which a reference is made, consent to a third person acting as stenographer, and both accept copies of the notes of the. testimony, knowing that the stenographer looks to them for payment of his fees, and the proceedings are dismissed, with costs and disbursements, but the court does not order the county to pay the same, both parties are liable for the stenographer’s fees, whether both can obtain reimbursement from the county, or whether defendant therein can recover such fees as disbursements from the other party.
Action by Mary R Bormay against John V. Van Ness and another. Judgment for plaintiff.
p. 641
Coleman & Donohue, for plaintiff.
C. N. Ironsides, for defendant Waldron.
John V. Van Ness, in pro. per.

The action is to recover fees earned by taking stenographic notes of evidence in a proceeding instituted by the defendant Waldron to disbar the defendant Van Ness. Mr. William P. Bonynge, the plaintiff’s assignor, was selected to act as stenographer by the consent of both defendants. He took notes of the testimony, furnished one copy to the referee, and one to each of the defendants. They accepted the stenographic services, knowing that Bonynge, the stenographer, expected compensation therefor from them. Indeed, the defendants were the only persons who benefited by his services, and to whom he could look for pay. These circumstances sufficiently establish an employment. Harry v. Hilton, 11 Daly, 232 ; Coale v. Suckert, 18 Misc. Rep. 76 , 41 N. Y. Supp. 583 ; Nealis v. Meyer, 21 Misc. Rep. 344 , 47 N. Y. Supp. 156 ; Thornton v. Tuttle, 20 Abb. N. C. 308 ; Ryan v. Rand, Id. 315 ; Varnum v. Wheeler, 9 Civ. Proc. R. 421. The defendants insist that this rule applied only to ordinary references, and not to one ordered in a proceeding to disbar an attorney, which is of a public nature, and quasi criminal, and that in such case the expenses must be paid by the county; citing Code Civ. Proc. § 68; In re Brewster, 12 Hun, 110 ; In re Kelly, 59 N. Y. 596 ; In re Attorney, 83 N. Y. 166 ; In re Orton, 54 Wis. 380 , 11 N. W. 584 ; In re V-, 10 App. Div. 513 , 42 N. Y. Supp. 268 . These authorities certainly show that discretionary power is conferred upon the appellate division to “make an order directing the expenses of such proceedings to be paid by the county,” etc.; but the power is not mandatory, to be exercised under any and all circumstances, but judicial, to be exercised as justice requires. In Re Kelly, supra, the court, instead of directing the county to pay, determined that the proceeding was instituted in bad faith, and directed that the applicant pay all the costs and disbursements incurred by way of indemnity to the injured party, and the order was sustained upon appeal. In the present instance the court did not direct the county to pay, but dismissed the proceedings with $50 costs and disbursements," evidently deeming this a sufficient indemnity to the successful party therein without mulcting the county with the expense. Whether Van Ness can ultimately recover from Waldron, as part of his necessary disbursements, whatever sum he may be required to pay to the plaintiff, is matter of no concern whatever to her. She has no claim for services against the county, and no means whatever of obtaining an order directing the county to pay. She must look to the defendants as of course, and they must respond whether they obtain reimbursement or not. There must be judgment in favor of the plaintiff for $918.25, with $164.55 interest; aggregating $1,077.80.

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