Pike v. Nash

16 How. Pr. 53

• Court: New York Supreme Court
• Decided: June 15, 1857
• Status: Published

Opinion

C. L. Allen, Justice.

The clerk was right in refusing to allow for the witnesses’ fees at the circuit in September, 1856. The plaintiff’s attorney knew that according to the course and practice of the court, the cause would be referred. The attorney for defendants, swears that he wrote to the plaintiff’s attorney, on the 9th of September, about a fortnight before the circuit, proposing to refer, to which he received no answer; that afterwards, before serving the notice of motion, he saw the plaintiff’s attorney, and stated to him, that the issues were such, that the court would probably refer the cause, whether the parties consented or not; and again proposed the reference. The attorney did not positively decline, but postponed agreeing thereto, and defendant finally served his notice of motion on the 19th of September. On the following week, when the circuit was held, the defendant’s attorney also once proposed to refer the cause on his part, which was not at that time assented to.

Under these circumstances, it is to be presumed that the attorney well knew, that the cause would be referred; and he should have so advised his client; and not have put him to the expense of bringing his witnesses to court, when he had every reason to believe and know that the cause would not be tried.

As to the other item, I think the clerk erred in not allowing travel fees for the whole distance from the witness’s place of residence. The witness, it is true, was subpoenaed at Schuylerville, where he was on business, and when he was about to return home. He insisted upon the whole amount of travel fees, from his place of residence, and refused otherwise to attend. It has been decided in this district, in a similar case, that he was entitled to it: and the plaintiff paid him the amount in good faith, and to secure his attendance before the referee. He was detained and prevented from returning home, or it may have been necessary for him to return and come back again. It is unnecessary, however, to dwell upon the question, as the decision already made, must control the present case.

The motion for adjustment must be granted, unless defendant’s attorney stipulates in writing, within twenty days, that the clerk may add $14.96, to the amount stricken out from this item, in which case, the motion is to be denied without costs to either party. Order accordingly.