Nugent v. Keenan — 1 N.Y. St. Rep. 708

Majority

p. 708

Thomas Nugent, respondent, v. Marcella Keenan, as executrix, appellant.

(New York Superior Court,

Filed June 21, 1886.)

Headnote

1. Costs—When additional security for costs as a non-resident may

BE REQUIRED.

When a plaintiff has given security for costs under section 3368 of the Code of Civil Procedure he cannot be compelled to give an additional undertaking until it shall have been shown by satisfactory proof that the sum specified in the first undertaking is insufficient. Mere allegation that tile sum mentioned in the first undertaking is not sufficient is not satisfactory proof.

3. Same—Stenographer’s fees—Cannot be taxed.

The stenographer’s fees on the trial of an action before a referee is not a - disbursement within the m aning Qf the law regulating the adjustment of costs, and cannot be taxed without a stipulation between the parties to that

p. 709

effect. And when on such trial parties employ a stenographer, and agree that each party shall pay half the fee, the successful party cannot tax as a disbursement the amount paid by him.

This is an appeal from an order made by a judge at special term, denying the defendant’s application for an order directing the plaintiff to file additional security for costs as a non-resident.

Daniel Daly, for appellant, Keenan.

J. Stewart Boss, for respondent, Nugent.

The plaintiff has already given an undertaking for security for costs under section 3268 of the Code of Civil Procedure, and cannot be compelled to give an additional undertaking until it shall have been shown by satisfactory proof that the sum specified in the first undertaking is insufficient. In this case that fact has not been established by satisfactory proof. It is true that the defendant alleges that the sum mentioned in the first undertaking is not sufficient, but no facts are shown that will warrant the court in concluding that that sum is insufficient.

The defendant suggests that he may obtain an extra allowance, but that is altogether too contingent a supposition to warrant us to reverse the order.

The stenographer’s fees on the trial of an action before a referee is not a disbursement within the meaning of the law regulating the adjustment of costs, and cannot be taxed without a stipulation between the parties to that effect. Newhall v. Appleton, 4 Law Bul, 5.

And where the parties on a trial before the referee employ a stenographer to take the minutes, and agree that each party shall pay half the fee, the successful party cannot tax as a disbursement the amount paid by him. Colton v. Simmons, 14 Hun, 75 ; Mark v. City of Buffalo, 87 N. Y., 184 .

The order appealed from is Affirmed, with costs and disbursements.