Nugent v. Keenan

Headnote

Security for costs—Amount given will not be increased except on allegation of facts showing necessity therefor — Oosts and disbursements—Stenographer's fees on reference not taxable—Stipulation that each, party shall pay one-half—Successful party cannot tax amount paid by him.

Appeal from an order made by a judge at special term, denying the defendant’s application for an order directing the plaintiff to file additional security for costs as a nonresident.

The Court at General Term said :—“ The plaintiff has already given an undertaking for security for costs under section 3268 of the Code of Civil Procedure, and cannot be compelled to give an additional undertaking until it shall have been shown by satisfactory proof that the sum specified in the first undertaking is insufficient. In this case that fact has not been established by satisfactory proof. It is true that the defendant alleges that the sum mentioned in the first undertaking is not sufficient, but no facts are shown that will warrant the court in concluding that that sum is insufficient. The defendant suggests that he may obtain an extra allowance, but that is altogether too contingent a supposition to warrant us to reverse the order. The stenographer’s fee on the trial of an action before a referee is not a disbursement within the meaning of the law regulating the adjustment of costs, and cannot be taxed without a stipulation between the parties to that effect (Newhall v. Appleton, 4 Law Bui. 5). And where the parties on a trial before a referee employ a stenographer to take the minutes, and agree that each party shall pay half the fee, the successful party cannot tax as a disbursement the amount paid by him

(Colton v. Simmons, 14 Hun, 75 ; Mark v. City of Buffalo, 87 N. Y. 184 ).