Johnson v. Chappell

7 Daly 43

• Court: New York Court of Common Pleas
• Decided: February 5, 1877
• Status: Published

Opinion

Robinson, J.

This is an appeal from an order affirming the decision of the clerk, on taxation of costs in allowing «charges of ten dollars for each set of interrogatories annexed. to a single commission. Four witnesses were examined, and separate interrogatories were annexed for the examination of each witness. The allowance beyond ten dollars for the whole set of interrogatories was, in my opinion, erroneous. The language of Sec. 307 of the Code appears to me •explicit “ for attending upon and taking the deposition of a witness conditionally or attending to perpetuate his testimony,” indicating the allowance to be distributive as to each attendance for the examination of each witness—and then “ for drawing interrogatories to annex to a commission for the taking of testimony, ten dollars.” This allowance is not for the drawing of each interrogatory or an interrogatory, but 6 entirely for the drawing (collectively) of (all) the interrogatories to be annexed to a commission.

This is in accordance with the views of the general “term of the Superior Court (38 Supr. C. R. [6 J. & S.] 4,) and of Judge Lawrence, in Bumstead v. Hoadley (Daily Reg. Dec. 19, 1876). The right to costs is “ strictissimi juris,” but it seems unnecessary, in this case, to apply that principle, as the intent seems clear. The order should be reversed and the allowance for all the interrogatories annexed to a separate or single commission reduced to $10.

Costs and disbursements of appeal allowed appellant.

Labbemobe, J., concurred.

Ordered accordingly.