Barlow v. Eagle Fire Ins. — 1 N.Y. Super. Ct. 153

Majority

p. 153

Joseph Barlow versus The Eagle Fire Ins. Co. of the City of New-York.

Oct. Term, 1828.

Headnote

Taxation of costs. Preliminary proofs, in an insurance cause, are not to be taxed in the plaintiff’s bill of costs.

The plaintiff cannot charge for drafting fas many’suipceitos as he has witnesses : but must prepare one draft, and from that engross the others.

The attorney for the plaintiff in this cause, in preparing his bill of costs, charged for drafts and copies of the affidavits of five different persons, whose testimony was necessary to establish the preliminary proofs of the plaintiff, and also for administering the oaths. He likewise charged for the notarial certificate, copy and Seal, together with inventories to be annexed thereto, and copies to be served: and also for the draft of a separate subpoena for each witness summoned, and for engrossing copies for each subpaena These items being contested on the taxation, it was submitted to the court to decide, whether they were taxable, and to what extent.

p. 154

* Mr. Anthon, for the plaintiff, contended,

j That the preliminary proofs were necessary proceedings in the cause, and therefore taxable. In Corlies v. Cummings [7 Co we n, 157.] the Supreme Court considered the words of the fee bill as entitled to a more liberal interpretation than was given to them in the case of Kenny v. Van Horn, [2 John. R. 107.] the statute being broader than the act on which that decision was founded. That the preliminary proofs are proceedings in the cause, within the meaning of the act, was evident from the fact, that they are to be produced at the trial, and the judge is to pass his opinion upon their sufficiency.

II. That each subpoena under the seal of the court is a new writ, and taxable as such. It was not the mere engrossing of a prior writ: for each subpoena requires anew praecipe, and a new seal, and all the power over the witnesses named therein was derived from the indentical writ, and not from any prior writ, of which it is supposed to be an engrossed copy. That Iherefore every new subpoena, required in the cause, was taxable as a new writ.

however, disallowed all the items relative to the preliminary proofs ; but permitted the plaintiff to charge for drafting and engrossing one subpoena, and for engrossing one copy, to he sealed for every four witnesses.

[Edward Anthon, Atty. for J. O. Grim, Atty. for deft.]