Barnhart v. Kron

Harrison, J.

The plaintiff moved the court below to retax the bill of costs filed by the respondent, by striking out each and every item thereof, upon the ground that none of said items were incurred by the respondent in maintaining or establishing any part of his defense to the action, but that each of said items was so incurred by his co-defendant. The court denied the motion, and the plaintiff has appealed.

The allowance or disallowance of items for the expenses and disbursements incurred upon the trial of an action must be left in nearly every instance to the discretion of the judge before whom the cause was tried. He has an opportunity to know the issues that are tried, the character of the prosecution and of the defense, the principal points upon which the witnesses are called, and whether there existed any necessity for calling them. We must assume that he would not allow costs to a party for witnesses that were unnecessarily called, or in a case like the present, for witnesses who were not called for the respondent. There is nothing in the record in the present case which shows that the court did not properly exercise its discretion in refusing to strike out the items objected to. The plaintiff does not in his affidavit show that the witnesses named in the bill of costs were not necessary for the defense of the respondent, or that they did not testify in his behalf. His statement that certain of the witnesses were called as witnesses for the co-defendant of the respondent, and did not testify on behalf of the respondent, “except in a general manner in connection with H. F. Kron, .... and that they did not testify on behalf of Oscar Kron, as contradistinguished from H. F. Kron,” is an admission that they did in . some respects, or upon some matters, testify in behalf of the respondent. So, too, his statement that other witnesses “did not testify as to any separate issue as made by the answer of Oscar Kron,” does not sufficiently show that the items for their defense as witnesses should be stricken from the cost bill. The character of their testimony at the trial is not a test of the necessity for incurring the expense of subpoenaing them as witnesses. The memorandum of costs filed by the respondent is supported by the affidavit of his attorney, that “the foregoing items of costs and disbursements in this action are correct, and that the said disbursements have been necessarily incurred in said action,” and unless controverted, should control the decision of the court.

The fact that the items for the fees of the sheriff, the clerk, and the reporter were for services performed for both defendants, and not “for services performed for Oscar Kron alone,” would not authorize the court to strike these items from the cost bill. The respondent may have himself paid all of these items, and if so, they were expenses necessarily incurred by him in his defense.

The order appealed from is affirmed.

Garoutte, J., and Paterson, J., concurred.