Pyne v. National Steamship Co. — 44 N.Y. St. Rep. 791

Majority

p. 791

Samuel Pyne, Adm’r, Resp’t, v. The National Steamship Co., Limited, App’lt.

(City Court of New York, General Term,

Filed March 10, 1892.)

Headnote

Costs—Depositions op plaintiff.

The expense of taking the testimony of the original plaintiff during a dangerous illness, which testimony was necessary to enable her administrator to recover, may be allowed as a disbursement on taxation of costs.

Appeal from order retaxing costs.

John Chetwood, for app’lt: Richards & Brown, for resp’t.

This is an appeal from an order retaxing costs.

This action is for value of goods lost by defendant, owned by Mary Pyne, who commenced the action. During its pendency she became dangerously ill; her testimony was absolutely necessary in her behalf to enable her administrator to recover judgment herein.

Because of her said illness a commission was issued to take her testimony, which was done. Subsequently and before the trial she died from said sickness, and her testimony taken under the commission was used upon the trial, by her administrator, the present plaintiff.

p. 792

The special term justice allowed as an item of plaintiff’s expenses the sum of twenty-five dollars, the amount paid the commissioner who took said Mary Pyne’s testimony, and from such order this appeal is taken.

Under the circumstances the allowance of said item was proper. As mentioned, her testimony was essential to plaintiff’s success : without it judgment could not have been rendered for plaintiff.

The testimony was not taken to suit plaintiff’s convenience, but because it was absolutely necessary to do so and in the manner in which it was done; no other course could have been pursued.

Order appealed from affirmed, with costs.

Ehrlich, Ch. J., and Yah Wyck, J., concur.