Stevens v. New York Elevated Railroad — 58 N.Y. Super. Ct. 569

Majority

p. 569

BYAM K. STEVENS, Respondent v. THE NEW YORK ELEVATED RAILROAD COMPANY, et al., Appellants.

Headnote

Stenographer's minutes, expense of procuring a copy of when taxable. Ffaudler Co. v. Sargent, 43 Hun, 154 , distinguished.

Before Sedgwick Ch. J. Freedman and O’Gorman, JJ.

Decided May 5, 1890.

Appeal from an order of the special term denying defendants’ motion for a retaxation of costs.

Davies & Rapallo, for appellants.

6r. W. Van Nest, for respondent.

The expense incurred for procuring a copy of the stenographer’s minutes was allowed by the clerk as a reasonable and necessary disbursement on appeal upon proof by affidavit that such copy was necessary to enable the respondent to propose amendments to appellants’ proposed case and to make at the end of each amendment the proper reference to the stenographer’s minutes as required by rule 9 of this court. To such a state of facts the opinion expressed in Pfaudler Co. v. Sargent, 43 Sun, 154, to the effect that the fees of a stenographer for a copy of his minutes are not taxable

p. 570

even when procured for the purpose of enabling a party to propose amendments to a case, does not strictly apply. Moreover, the cases cited in support of said opinion are all cases where the fees were sought to be taxed on the entry of the original judgment, and not on appeal. In addition it was shown in the case at bar in opposition to the motion for a retaxation that the defendants had appealed to the court of appeals. This constituted, even under the decision of Pfaudler Co. v. Sargent, a waiver of the right to move for a retaxation.

Under all the circumstances the learned judge below was right in denying defendants’ motion for a retaxation, and the order appéaled from should be affirmed, with ten dollars costs and disbursements.