Delcomyn v. Chamberlain — 39 N.Y. Super. Ct. 359

Majority

p. 359

FRANZ DELCOMYN, Plaintiff and Appellant, v. JOHN C. CHAMBERLAIN, et al., Defendants and Respondents.

Headnote

TAXATION OF COSTS.

In the taxation of a bill of costs, including fees paid to a commissioner for the examination of the plaintiff, where the court, making the order for the commission, made no order for the taxation of the costs, and where no person was examined except the plaintiff, the fees paid to such commissioner should not be allowed. A different practice would lead to abuses difficult to check.

Before Sedgwick and Speir, JJ.

Decided May 3, 1875.

Appeal from order, directing a re-taxation of costs. The plaintiff took out an order to examine himself and other persons as "witnesses, under a commission issued to London. The plaintiff who lived in London, was, in fact, the only witness examined. The plaintiff recovering judgment, the clerk in taxing his costs allowed, as a disbursement, the amount paid to the commissioner as fees. The court below ordered a re-taxation, disallowing the commissioner’s fees. The appeal is from this order.

George De Forest Lord, for appellant.

Benj. F. Dunning, for respondents.

The court making the order for a commission had power to direct, as one of the terms, that a disbursement of the kind in question might be taxed. In the ab s nee of such a

p. 360

provision, we think the court below made a proper disposition of the application. We are of opinion that a different practice would lead to abuses difficult to check.

The order is affirmed, with ten dollars costs.

Speir, J., concurred.