Simon v. Ingber

City of New York Municipal Court

Simon v. Ingber

204 Misc. 883, 128 N.Y.S.2d 44, 1953 N.Y. Misc. LEXIS 2622

DecidedNovember 23, 1953

StatusPublished

This text of 204 Misc. 883 (Simon v. Ingber) is published on Counsel Stack Legal Research, covering City of New York Municipal Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Simon v. Ingber, 204 Misc. 883, 128 N.Y.S.2d 44, 1953 N.Y. Misc. LEXIS 2622 (N.Y. Super. Ct. 1953).

Pincite

Opinion

Evans, J.

Motion for a reargument granted. I excluded from the bill of costs the sum of $159 paid by defendants to the Warden of Dannemora Prison for bringing Leopold Ingber, a prisoner, to testify on behalf of defendants in a case in which the prisoner and his wife were codefendants. The ground for exclusion of this sum ivas that defendants are not entitled to witness fees and expenses when one of them comes to court to testify in his own behalf, or in behalf of the defendants jointly (Civ. Prac. Act, § 1541).

It is now said that Leopold Ingber did not come to court to testify in his own behalf, but in behalf of his wife. The cause of action was upon promissory notes made by the prisoner and his wife. It was a joint and several liability. The defense was a joint defense of usury in one answer, appearing by the same attorney. The application to bring the prisoner as a witness (under Civ. Prac. Act, § 415) was made by the other defendant, not to bring him as a witness in her behalf alone, but in behalf of defendants. The order directing the warden of the prison to bring the prisoner down was not as a witness in behalf of the other defendant, but as a witness “ in behalf of the said defendants ”. The prisoner was thus a witness not solely for his codefendant, but a witness in his own behalf, and a witness in behalf of the joint interests of defendants.

I think, therefore, that the defendants cannot tax as costs the expenses of one defendant coming to court to testify. Original disposition adhered to.

Free access — add to your briefcase to read the full text and ask questions with AI

Evans, J.

Motion for a reargument granted. I excluded from the bill of costs the sum of $159 paid by defendants to the Warden of Dannemora Prison for bringing Leopold Ingber, a prisoner, to testify on behalf of defendants in a case in which the prisoner and his wife were codefendants. The ground for exclusion of this sum ivas that defendants are not entitled to witness fees and expenses when one of them comes to court to testify in his own behalf, or in behalf of the defendants jointly (Civ. Prac. Act, § 1541).

It is now said that Leopold Ingber did not come to court to testify in his own behalf, but in behalf of his wife. The cause of action was upon promissory notes made by the prisoner and his wife. It was a joint and several liability. The defense was a joint defense of usury in one answer, appearing by the same attorney. The application to bring the prisoner as a witness (under Civ. Prac. Act, § 415) was made by the other defendant, not to bring him as a witness in her behalf alone, but in behalf of defendants. The order directing the warden of the prison to bring the prisoner down was not as a witness in behalf of the other defendant, but as a witness “ in behalf of the said defendants ”. The prisoner was thus a witness not solely for his codefendant, but a witness in his own behalf, and a witness in behalf of the joint interests of defendants.

I think, therefore, that the defendants cannot tax as costs the expenses of one defendant coming to court to testify. Original disposition adhered to.

Cite This Page — Counsel Stack

Bluebook (online)

204 Misc. 883, 128 N.Y.S.2d 44, 1953 N.Y. Misc. LEXIS 2622, Counsel Stack Legal Research, https://law.counselstack.com/opinion/simon-v-ingber-nynyccityct-1953.