Finch v. Calvert

13 How. Pr. 13

• Court: New York Supreme Court
• Decided: June 15, 1856
• Status: Published

Opinion

Clerke, Justice.

The “ disbursements" allowed by the 20th section of the act concerning the fees of officers, (2 R. S. 634, marginal,) have been interpreted, under the system established under the common law and recognized by the Revised Statutes, as an ordinary necessary expenditure of the attorney, “ for services done or performed by the officers of the several courts of law or equity in this state," or for the fees of witnesses examined in this state, or for some other fees- expressly specified in the above mentioned act; and as no provision was made by the Revised Statutes for the fees of witnesses examined on a commission out of the state, or for the other expenses of the commission, such disbursements were not allowed under that system. Some of my brethren have adopted the same rule under the Code, believing-that the words employed in § 311 of the Code—“ the necessary disbursements and fees of officers allowed by law"—meant only those disbursements specifically authorized by the Revised Statutes. But I am of opinion,— considering the whole purpose of the Code, the language employed, and the spirit and tenor of its enactments,—that the word “ disbursements" has a more extensive meaning under the present than under the former system.

The compensation to the prevailing party, let it also be remembered, is not given by the way of costs and disbursements KaV the attorney, but as “ an indemnity" to the party himself; 303;) and I can see no possible reason, why his necessary expenses in executing a commission in a foreign state should not be as properly included in that indemnity as any other necessary expense, which he has incurred in prosecuting or defending the action. I cannot doubt that § 311 embraces all actual necessary disbursements.

The two disputed items should, therefore, be. allowed»