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Ridabock v. Metropolitan Elevated Railway Co.

75 N.Y. St. Rep. 336 Court N.Y. App. Div. Decision date 1896-07-31 English

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p. 336
William S. Ridabock v. Metropolitan El. Ry. Co. et al.
(Supreme Court, Appellate Division, First Department,
July 31, 1896.)

Headnote

Dosts on appeal—Stenoobafhbrs’ pees.
The amount paid for a copy of the stenographers’s minutes obtained for the purpose of properly preparing amendments to the case on appeal is a taxable disbursement.
Appeal from special term, New York County.
Action by William S. Eidabock against the Metropolitan Elevated Eailway Company and another for an injunction and damages. Plaintiff obtained a judgment, from which defendants appealed to the appellate division, where it was affirmed. 39 N. Y. Supp. 131 . On taxation of costs the clerk refused to allow plaintiff to tax the amount paid for the stenographer’s minutes used in preparing amendments to defendants’ case on appeal. A motion for a retaxation of costs .was denied, and plaintiff appeals.
p. 337
S. T. Cannon and Wilfrid N. O’Nesl, for appellant.
Davies & Rapallo, for respondents.

The rule in this department is that the amount paid for a copy of the stenographer’s minutes, obtained for the purpose of properly preparing amendments to the case on appeal, is a taxable disbursement. Sebley v. Nichols, 32 How. Prac. 182; Cutter v. Morris, 7 N. Y. St. Rep. 426 ; Stevens v. Railroad Co. (Super. N. Y.) 9 N, Y. Supp. 707 . The cases contra deal mainly with minutes obtained for use upon the trial. It is said however, in Pfaudjer Co. v. Sargent, 43 Hun, 154 , that the stenographer’s fees are not taxable, even when procured for the purpose of enabling a party to prepare amendments to a case. This was not necessary to the decision of that case, and it seems to overlook rule 32 of the general rules of practice, which provides that, “if the party proposing the amendments claims that the case should be made to conform to the minutes of the stenographer, he must refer at the end of each amendment to the proper page of such minutes.” The respondent is thus practically compelled to procure the stenographer’s minutes if he desires a fair and truthful record. He can only obtain this by complying with the rule. Thus the rule, in substance, makes the disbursement “necessary, according to-the course and practice of the court,” as provided in section 3256 of the Code of Civil Procedure, The appellant here presented an affidavit to the clerk to the effect that “the copy of the stenographer’s minutes was actually and necessarily obtained and used for the purpoe of preparing the amendments of plaintiff to the defendants’ proposed case on appeal.” Under the circumstances, we think the item should have been allowed.

The order appealed from should therefore be reversed, with $10 costs and disbursements, and the motion for a re-taxation granted, with $10 costs, and the item allowed.

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