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Perry agt. Livingston and others.

WARD Hunt, for Plaintiff.
F. Kernan, for Defendants.

W. F Allen, Justice.-1. The clerk erred in allowing to the defendants separate bills of costs. To defendants who succeed and who have severed on the defence and appeared by separate attorneys, separate bills of costs are allowed (Tenbroeck vs. Page, 6 Hill, 267). Where they appear by the same attorney, although they answer separately, but one bill of costs can be taxed (Albany and W. S. R. R. Company vs. Cady, 6 Hill, 265; Tracy vs. Stone, 5 How. Pr. R. 404). The rule is the same where they appear by different attorneys who are partners (Crofts agt. Rockefeller, 6 How. Pr. R. 9).

In this action the defendants appeared nominally by different attorneys, but the attorney upon record of one of the defendants was and is the clerk of the attorneys of the other two defendants, and it is not claimed that he acted in the defence other than as the clerk and for the benefit of his principals. It was in effect an appearance by the same attorney. There was no necessity for a separate defence. The fact that the defendants were not partners, and as such joint contractors, furnished an available defence to all the defendants, and it was not a case in which a judgment could have been given for or against one or more of several defendants; a several judgment would not have been proper (Code, $ 274). But one bill of costs should have been allowed.

2. The action was noticed for trial at the circuit, and before it was reached upon the calendar was referred upon motion of the defendants. The clerk has allowed “after notice of trial for circuit, $7,” and “after notice of trial for reference, $7.But one of these items should have been allowed. The provision under which the item is allowed is as follows: "To the defendant, for all the proceedings before notice of trial, five dollars; for all subsequent proceedings before trial, seven dollars” (Code, § 307, sub. 2). The five dollars is allowed for putting the cause at issue and noticing it for trial, and the seven dollars for all subsequent services before actual trial. If the cause is necessarily noticed for trial more than once, the only compensation to

Perry agt. Livingston and others.

the ca

which the party is entitled, is given by subdivision 8 of the same section.

It would have been strange had the legislature allowed but five dollars for all the proceedings, before notice of trial, including an answer, and allowed seven dollars for every notice of trial; but the language employed and the whole tenor of the provisions of the Code in relation to costs, are entirely inconsistent with such a construction. 3. The cause was referred before it was reached

upon lendar at the circuit, upon the instance of the defendants, and the clerk allowed to the defendants, under the objection of the plaintiff, ten dollars for that circuit. I think in this the clerk erred. 1st. If the cause was a referable cause, as it doubtless was, in as much as it was referred upon motion and under the objection of the plaintiff, it was not necessarily upon the calendar.” The defendants might and should have moved the reference before the circuit and without putting the cause on the calendar. 2d. The item can not be allowed for the reason that the cause was not reached upon the calendar. It was not for that cause that the action was not tried at the circuit at which it was noticed. The cause would have been tried bad it been properly triable at the circuit. 3d. The cause was not postponed within the meaning of the statute. That clause of the statute is designed to embrace those causes, the trial of which is deferred from circuit to circuit for cause not to actions which are placed upon the calendar and referred before they are reached (Code, 307, sub. 8).

4. A more serious question arises upon the allowance of witness's fees to the defendants for their attendance upon the trial. The action was brought by the plaintiff as assignee of the demand and the assignor was examined as a witness on his behalf (the plaintiff having given previous notice that he would be so examined). The defendants offered themselves as witnesses to the same matter, and were sworn on their own behalf (Code. g 399). The clerk allowing separate bills of costs to the defendants' appearing separately, allowed to the defendants, Henry W. and Horace C. Livingston, for the attendance of Van Vechten Livingston as a witness in their behalf, and to Van Vechten Livingston for the attendance of his codefendants as witnesses in his behalf.

Perry agt. Livingston and others.

There is nothing in the case to show that there was any matter in issue in which all the defendants were not jointly interested, and as to which a separate verdict or judgment could have been rendered, and to which any one of the defendants could have called his codefendants as witnesses within § 397 of the Code. The examination of the defendants was under the section before cited (§ 399), and in answer to the testimony of the assignor of the demand. It was not, therefore, a calling of one defendant as a witness for his codefendant, but it was an offer by each defendant of himself as a witness in his own behalf as well as in behalf of his codefendants. The examination was for the benefit of all and was not restricted to be used only in behalf of the codefendants under $ 397. Can then a party be allowed for travel and attendance to give evidence in his own behalf as a witness? By the Code the prevailing party upon a judgment is allowed certain sums by way of indemnity for his expenses in the action, which allowances are termed costs (Code, 9 303). By section 311, the clerk is authorized to insert in the entry of judgment, on the application of the prevailing party, the sum of the charges for costs as prescribed by the act," and the necessary disbursements and fees of officers allowed by law.” Witnesses are by law entitled to a certain compensation for their attendance, without the payment of which their attendance can not be compelled (Laws of 1840, ch. 386, § 8; 2 R. S. 400, § 42). It is as a new cessary disbursement that the party is allowed to recover the amount paid for witnesses fees. If not actually paid, the party in whose behalf they attend is liable to pay them. But there is no such necessary disbursement incident to the attendance of the party; he attends voluntarily. It is true he necessarily incurs an expense in attending the trial of a cause, but it is not a fixed amount of fifty cents a day and four cents for each mile travelled, which is the amount he necessarily disburses to his witnesses. His expenses, if to be allowed at all, can not be regulated by the amount to which witnesses are entitled, but must be governed by the amount actually and necessarily disbursed by him in his attendance at the trial, to be shown by affidavit. But if the expenses of a party attending the trial of a cause to give evidence in his own behalf can be allowed him

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Jackson agt. McBurney.


as a necessary disbursement, then he should be allowed his necessary expenses while attending to aid and advise with his counsel upon the trial, which is ordinarily necessary. The principle is the same whether his attendance at the trial is for one cause or another, if it is necessary to the proper defence or prosecution of the action; and if the expense of attendance should be allowed in one case it should in all. There


be cases under $ 397 in which a party may recover witnesses fees for the attendance of a codefendant; but this case is not within the provision of that section.

In Christy vs. Christy (6 Paige, 170), the chancellor held that when a complainant was examined as a witness in his own favor, in a case in which such examination was allowed, he was not entitled to charge for his fees as a witness. The cases are analagous, and if there were any doubt upon principle, this authority would be conclusive upon me.

Certain technical objections were taken upon the hearing which were finally waived and are therefore not considered. The conclusions to which I have come affect very seriously the amount of the compensation and the extent of the indemnity given to the defendants, and leaves them, probably, an inadequate compensation for the expenses incurred in the litigation. But the remedy is, I think, with the legislature. There must be a reference to the clerk of Oneida county to readjust the costs upon the principles indicated, without costs to either party.



Jackson agt. McBurney.

A charge of $7, for all subsequent proceeaings before trial (307) can be allowed

only once, though the cause may have been several times noticed for trial. (This agrees with Perry agt. Livingston, ante page 404.)

Tompkins Special Term, March 1852. Motion to strike out certain items of costs. The plaintiff commenced his bill of costs by charging for “proceedings before notice of trial, $12; subsequent $7," and repeated the charge of the item of $7 four

Jackson agt. McBurney.

times once for each circuit the cause was noticed for trial. On the adjustment of costs before the clerk the several repetitions of this charge were objected to, but allowed by the clerk, and now the defendant moves to strike out from the plaintiff's bill of costs $28, being the aggregate amount of the several repetitions of this charge, and to have the same deducted from the judgment entered in the cause.

Geo. T. SPENCER, for the Motion.

J. McGUIRE, Contra. H. Gray, Justice. The only authority relied upon to justify the repeated charge of this item of $7, is the case of Mitchell agt. Westervelt (6 How. Pr. R. 265). The question here presented does not appear to have arisen in that case; the report of it does not show that the $7 was charged a second time, and hence the case furnishes no authority upon the point in controversy. The reason assigned by the court in that case for the legality of the charge was, that it was intended as a compensation for a notice of trial, issuing subpænas, &c., preparatory to trial, and was a part of the costs of the circuit.” The plaintiff assumes that the grounds upon which the charge in that case was upheld, justifies the repetition of the charge whenever the services which it was intended to compensate are necessarily repeated. The services performed in making a brief and copy pleadings are a part of the costs of the circuit; the reward for them is included in this item of $7; if the cause is not tried, those services are not necessarily repeated and were not, under the old system, allowed to be more than once taxed during the progress of the cause. This $7 was in the case referred to, properly denominated a part of the circuit costs, and is so when the cause is tried at the first circuit for which it is noticed; but if the trial is postponed it can not be included in the costs of circuit any more than the brief and copy pleadings could have been under the old practice. The circuit costs now imposed as a condition upon which a cause may be postponed is limited to $10, besides the fees of witnesses (Code, 9 314). Part of this sum of ten dollars was doubtless intended to cover the slight and easily performed services necessary to be repeated; such as noticing the cause and issuing sub

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