Curtis v. Dutton — 6 N.Y. Super. Ct. 719

Majority

p. 719

Curtis, Executor, &c., v. Dutton.

Headnote

A plaintiff, who sues as executor, on judgment- being rendered against him, is liable for costs, either personally, or to be paid by the estate, in all cases where one suing in his own right would pay costs.

In the taxation of the fees of a witness, at the trial term, who resides at a distance from the city, the party may tax for his attendance from the period when the cause was likely to be on the day calendar for the next day. His attendance will not be taxed during the whole period the cause was on the general cal- .. endar.

March 26, 1852.

Motion to correct the adjustment of costs, in a suit by the plaintiff as executor against the defendant personally, in which a verdict had passed for the defendant. Pull costs were taxed against the plaintiff, to be collected out of the estate of the testator. There was taxed in the costs, a charge for fifteen days attendance of a witness in January term, and fourteen days in February term.

W. S. Sears, for the plaintiff

p. 720

W. M. Alien, for the defendant.

(all the Justices concurring.) — The plaintiff admits that the provision of the revised statutes, exonerating from costs persons who sue in a representative capacity, is abolished by the code, and contends that the only section of the code which gives costs against them is the 317th. He then argues that this section only gives them against the plaintiff, when the parties on both sides are in a representative character, as in a suit by an executor against a trustee, or the like.

We do not so understand the code. , The language is disjunctive.; it applies to a suit either by or against an eoxcutor, &c., without regard to the character of the adverse party. As to actions by or against persons in their own right, whether their suits were against executors, or they were sued by executors, the previous sections had in like manner defined their liabilities, without reference to the character of their adverse parties.

As to the witnesses’ fees. The cause stood No. 278, on the January trial term calendar, which was continued through February. This witness lived at Paterson, N. J., and could be procured on a day’s notice. The 31st January was the earliest day on which it was probable that the cause would be on the day calendar of the succeeding day.. It was on the day calendar, on Monday, February 2d, and continued there till the 6th, when it was set down for the 12th. It was then on the day calendar, and again, February 13th, when it was tried. The affidavit proved the attendance of the witness the whole twenty-nine days taxed.

Where a witness resides at a distance from the city, we allow the party to send for him as soon as it is probable the cause will be on the day calendar, by the time, or within a day or two of the time when the witness will arrive in the city. We do not tax for his attendance longer than this rule, followed in good faith, will require his attendance. Causes are frequently on the general term calendar a month, without the day calendar

p. 721

once reaching them. It would be absurd for witnesses to attend the court under such circumstances.

In this case, the defendant may tax for the witness’s attendance eight days, viz., January 31st, and February 2d, 3d, 4th, 5th, 6th, 12th, and 13th.

Order accordingly.