Opinion
March, 1908.
H.C. Mitchell, for plaintiff.
Lyon Smith, for defendants.
These are cross-motions to review the taxation of costs herein. There were two trials had; the first trial, on March 16, 1897, when the verdict of the jury in favor of the plaintiff was set aside and a new trial ordered. The cause was again tried on February 24, 1908, after a lapse of eleven years, and again resulted in a verdict in favor of the plaintiff. The plaintiff asked in his bill of costs for two trial fees, which the clerk refused to allow, taxing only one trial fee of thirty dollars; the clerk, under exception by the defendant, allowed twenty-five dollars costs for proceedings before and after granting new trial, and allowed and taxed as a disbursement of the plaintiff thirty-five dollars and forty cents for stenographer's minutes for use upon the second trial, on account of death of witness, to which the defendant excepted. The plaintiff, being the successful party, is entitled to a trial fee of thirty dollars for each trial had, even though the prior trial was abortive. Hudson v. Erie R.R. Co., 57 A.D. 98. The item of twenty-five dollars for proceedings before and after granting new trial was properly allowed. Code Civ. Pro., § 3251, subd. 3. The clerk allowed thirty-five dollars and forty cents paid by plaintiff for stenographer's minutes. The lapse of time between the two trials of this action was nearly eleven years, and during that time plaintiff's counsel, having charge of the cause, died, as did also one of the plaintiff's and one of the defendants' witnesses. Another of the plaintiff's witnesses was without the State of New York; another of the defendant's witnesses could not be found. It was stipulated between the respective attorneys that the stenographer's minutes of the testimony of said witnesses on the first trial could be read in evidence at the second trial. This item should have been disallowed. There are decisions to the effect that the expense of procuring the stenographer's minutes of a trial for use upon a subsequent trial may properly be taxed as a disbursement, but the better opinion would seem to the contrary. Hamilton v. Butler, 30 How. Pr. 36; Pfaudler Barn Extracting Co. v. Pfaudler, 39 Hun, 191; Pfaudler Co. v. Sargent, 43 id. 154; Whitney v. Roe, 75 id. 508; Shaver v. Eldred, 86 id. 51; Equitable Life Assur. Soc. v. Hughes, 125 N.Y. 106, 111. In 1892, by chapter 185 of the laws of that year, the Legislature amended section 3256 of the Code of Civil Procedure so as to make the expense of procuring stenographers' minutes a taxable disbursement, but the law was repealed before it took effect by chapter 592 of the Laws of 1892. The clerk is directed to readjust the plaintiff's costs in accordance with the foregoing decision, without costs on these cross-motions to either party.
Ordered accordingly.