Van Dusen v. Bissell

Daniels, J.

This court in an unreported decision has already held that the’ party who attends the trial of his cause solely as a witness, and is sworn and examined as such, is entitled to witnesses fees. And the ruling has been acted upon by the legal profession for several years in this district. If a uniform rule could be secured by departing from that decision, so that the construction of the Code upon this subject would be the same throughout the state, I should consider it to be the duty of this court to follow that course. For where a question'upon principle may be very nicely balanced,' it is best for the public that a fixed and inflexible determination should be maintained, even though it may be at the expense of mere abstract right. It is more necessary that a general rule should be secured, that can be known and observed by all in cases of that nature, than that positive accuracy should be reached through the uncertainty of a succession of conflicting and incompatible decisions. It is a very serious fault in the present judicial system of this state,' that it was created in such a manner as not only to create, but also to foster variety and conflict in its determinations of legal controversies.-

■ But it is out of the power of this court to remedy that evil by surrendering the conclusion previpusly arrived at, upon the question' presented 'by this appeal. For the same ruling has been made by the general term in the first district (Hanna agt. Dexter, 15 Abb. 135), and by that of the third district, where the principle is still further extended, so as to allow fees to the successful party whenever he may be sworn and examined as a witness upon the trial (Tiffany & Smith’s Pr. vol. 2, 439). The rule which has been adopted in this district is also observed by the superior court of New York city •(Bronner agt. Frauenthal, 20 How. 355), in which the learned justice states the ruling to be uniform upon that subject in all the courts in that city. See also TaaJcs agt. Schmidt (25 How. 341, 344), .and .Rogers agt. Chamberlain (7 Abb. 451), which was decided by the court of common pleas. That is also the construction of the law declared by the special term in. the fourth district (Logan agt. Brooks, 17 How. 29), and by the superior court in the city of Buffalo.

While I feel bound to concede that the reason of the law seems to be altogether with the courts of the seventh district (Case agt. Pierce, 17 How. 348, 353), and that of the sixth district (Steere agt. Miller, 28 How. 266), yet I do not think that we are at liberty .under the circumstances to follow them. In the present condition of judicial authority, there is a manifest propriety in maintaining the conclusion already declared by this court until some different general rule shall be promulgated by the court of appeals or be prescribed by legislative power. And for that reason alone, the order of the special term should be affirmed.

Grover, P. J., and Marvin, J., concur.