Ridabock v. Metropolitan Elevated Railway Co.

8 A.D. 309, 40 N.Y.S. 938, 75 N.Y. St. Rep. 336, 1896 N.Y. App. Div. LEXIS 2331

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 1, 1896
• Status: Published

Opinion

Per Curiam :

The rule in this department is, that the amount paid for a copy of the stenographer’s minutes, obtained for the purpose of properly preparing amendments to the case on appeal, is a taxable disbursement. (Sebley v. Nichols, 32 How. Pr. 182 ; Cutter v. Morris, 7 N. Y. St. Repr. 426; Stevens v. N. Y. El. R. Co., 31 id. 404.) The cases contra deal mainly with minutes obtained for use upon the trial. It is said, however, in Pfaudler Co. v. Sargent (43 Hun, 154) that the stenographer’s fees are not taxable even when procured for the purpose of enabling a party to prepare amendments to a case. This was not necessary to the decision of that case, and it seems to overlook rule 32 of the General Rules of Practice, which provides that, “ If the party proposing the amendments claims that the case should be made to conform to the minutes of the stenographer, he must refer at the end of each amendment to the proper page of such minutes.” The respondent is thus practically compelled to procure the stenographer’s minutes if he desires a fair and truthful record. He can only obtain this by complying with the rule. Thus the rule in substance makes the disbursement “ necessary * * * according to the course and practice of the court,” as provided in section 3256 of the Code of Civil Procedure. The appellant here presented an affidavit to the clerk to the effect that “ the copy of the stenographer’s minutes was actually and necessarily obtained and used for the purpose of preparing the amendments of plaintiff to the-defendant’s proposed case on ajipeal herein.” Under the circumstances, we think the item should have been allowed. The order appealed from should, therefore, be reversed, with ten dollars costs and disbursements, and the motion for a retaxation' granted, with ten dollars costs and the item allowed.

■Present — Barrett, Rumsey, Patterson and Ingraham, JJ.

Order reversed, with ten dollars costs and disbursements, and. motion granted, with ten dollars costs.