Pringle v. Dean ( 1911 )

MERRELL, J.

[ 1 ] This is a motion to strike from the bill of costs- and disbursements taxed by Oswego county clerk in favor of the defendant and respondent above named an item of disbursement of $32" paid for copy of stenographer’s minutes, which respondents claim was necessarily obtained in order to prepare amendments to proposed case on appeal. Plaintiff appellant contends that such item was unnecessary, and therefore not taxable, for the reason that there was an understanding between the attorneys for the respective parties that the-appellant’s copy should be used by the respondents in preparing such amendments. Respondents flatly deny that any such understanding" ever existed.

The appeal herein was brought April 22, 1909. October 2, 1909, the-copy of the minutes in question was obtained by the respondents. The case and exceptions, which, under the somewhat novel and loose practice in vogue in the county of Oswego, consisted of reducing the-stenographer’s transcript to narrative form by means of erasures arid interlineations, and, when thus altered, serving said transcript as the-proposed case and exceptions on appeal, was served December 28, 1909. The most that is claimed by the moving party is that the understanding that the appellant’s copy of the minutes should be used by the respondents was two months prior to the serving of the case and exceptions, or the last of October, 1909. Several weeks prior thereto respondents had obtained the copy for which they now seek reimbursement.

Without attempting to reconcile disagreements of attorneys as to-whether any such understanding was had, except that it seems strange that respondents’ attorney should have entered into such an agreement understandingly when he had several weeks previously obtained' and paid for a copy of the minutes, and to remark an entire absence-of any apparent profit to respondents by such a course, I think the respondents acted in good faith in obtaining their copy on October 2, 1909, presumably ordered some time prior thereto, and that the item of disbursement representing the same should be taxed.

When the appeal was brought, the respondents had the right to foresee that amendments would in the usual course of practice be required, and the transcript was necessary and proper in order to prepare such amendments, and was properly taxed. Rule 32; Ridabock v. Metropolitan Elevated R. R. Co., 8 App. Div. 309, 40 N. Y. Supp. 938; Park v. N. Y. C. & H. R. R. Co., 57 App. Div. 569, 68 N. Y. Supp.460, 1145; Starkweather v. Sundstrom, 113 App. Div. 401, 98 N. Y. Supp. 1086.

[2] Had the appellant tendered his copy to respondents prior to respondents’ obtaining a copy of the stenographer’s minutes, she might have relieved herself from liability, because, had the respondents afterwards proceeded to obtain an independent copy, they would have incurred an unnecessary expense, and appellant could then have suc•cessfully objected to the taxation thereof. Starkweather v. Sundstrom, supra.

[3] The respondents meet appellant’s contention with another objection, which, while technical, is not without force, viz., that the alleged understanding was without effect, not being in writing. See .general rule of practice 11.

I therefore must deny motion, with $10 costs.