Sternberger v. Sternberger — 98 N.Y.S. 946

Majority

p. 946

(113 App. Div. 898)

STERNBERGER v. STERNBERGER.

(Supreme Court, Appellate Division, First Department.

May 11, 1906.)

Headnote

Divorce—Expenses—Appeal—Allowance—Amount.

Where the court was justified in requiring the defendant husband in a divorce suit to pay the expense of printing the record on plaintiff’s appeal, the order requiring him to pay should stipulate that he should pay the costs of priuting the record, when the amount should be ascertained and the record printed, and the fact that the cost of printing all the record would be a specified sum did not justify a presumption that such a sum would be necessary to print the case, as finally settled by the trial judge, pursuant to General Rules of Practice, Rule 34.

Appeal from Special Term, New York County.

Action by Birdie S. Sternberger against Louis Sternberger. From an order directing defendant to pay to plaintiff’s attorney $2,000 to print the record on appeal from the final"judgment, defendant appeals.

Modified and affirmed.

Argued before O’BRIEN, P. J., and INGRAHAM, McLAUGHLIN, CLARKE, and HOUGHTON, JJ.

W. H. L. Edwards, for appellant.

H.' S. Gans, for respondent.

We think the court below was justified in requiring the defendant to pay the expense of a review of this judgment upon the plaintiff’s appeal. The order, however, directs the defendant to pay to the plaintiff’s attorney the sum of $2,000, and any additional sum that may be necessary to defray the cost of printing such appeal. There does not seem to be a necessity for the immediate payment of the sum of $2,000, before the case is settled and the cost of printing the record is ascertained. It does not seem possible that it will be necessary to print all of the testimony in the habeas corpus proceeding, although the same was introduced as evidence upon the trial. Upon the settlement of the case, an abstract of that testimony so as to present all the evidence necessary to submit to the court the question to be presented on the appeal can be prepared, and the trial judge can determine upon the settlement of the case how much of the evidence is necessary to present the question on the appeal. Rule 34, General Rules of Practice. The fact that the cost of printing all the record in the habeas corpus proceeding- would be $2,000 does not justify a presumption that such a sum would be necessary to print the case as finally settled by the trial judge. :

The order should therefore be modified by requiring th§ defendant to pay the counsel fee- named, and to pay to the plaintiff or to her attorney the cost of printing the record on appeal, when the amount shall be ascertained and the record printed; and, as modified, the order should be affirmed, without costs of this appeal.

All concur.