In re Metropolitan Elevated Railway Co. — 46 N.Y. St. Rep. 138

Majority

p. 138

In the Matter of The Metropolitan Elevated Railway Co. to Acquire Title to Certain Real Estate. In re Jones et al.

(Supreme Court, General Term, First Department,

Filed May 13, 1892.)

Headnote

Costs—Disbursements—Stenographer’s fees.

The expense of stenographer’s notes in another action which have been read pursuant to stipulation, cannot be taxed as a disbursement where such notes were procured under an order in the other action, for use in such action, which provided for the payment of such expense.

Appeal from an order reversing the clerk’s decision disallowing an item of disbursement for the stenographer’s notes of testimony taken upon the trial of an action in the superior court between the same parties and directing the allowance of such disbursement.'

Julien T. Davies and R. L. Maynard, for app’lts; Roger Foster for resp’ts.

The affidavits conclusively show that the stenographer’s notes were not procured for use in this proceeding, but really for use in the superior court action. They were procured under an order of that court which provided that each party pay one-half of the stenographer’s fees, and that “ the successful party may tax the sum to be paid as a part of the costs of the action.” Some seven weeks after the procurement of these minutes in the manner indicated, a stipulation was entered into in this proceeding that either party might read therefrom, before the commissioners, any of the testimony thus taken in the superior court action. There was, however, no stipulation or further order with regard to the taxation in this proceeding of the disbursement so made. As this disbursement had no relation to the present proceeding, and as its taxation was provided for in the superior court action, it clearly should not be here allowed, and the order appealed from should therefore be reversed, with costs and disbursements, and the clerk’s taxation affirmed.

Van Brunt, P. J., O’Brien and Barrett, JJ., concur.