Michael Lalla, Appellant, v. Josiah W. Bulkley, Respondent

Michael Lalla, Appellant, v. Josiah W. Bulkley, Respondent. Second Department, March 28, 1913. Costa—witness fees — when party not justified in subpoenaing witnesses. Witness fees will be disallowed where it does not sufficiently appeal1 that the witnesses subpoenaed were material and necessary and where they were not sworn, although in court. A party is not justified in subpoenaing witnesses solely on the theory that the court may make an erroneous ruling which will make them necessary on rebuttal. Appeal by the plaintiff, Michael Lalla, from an order of the Supreme Court, made at the' Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 10th day of January, 1913, as resettled by an order entered in said clerk’s office on the 16th day of January, 1913. Sydney A. Syme, for the appellant. Benjamin I. Taylor, for the respondent. [MAJORITY — Per Curiam:] Per Curiam: The same question is involved on this appeal as in that of Capozzi v. Bulkley (156 App. Div. 55), decided herewith, except that there was a further disallowance by the court at Special Term of the sum of thirty dollars taxed by the plaintiff for witness fees on the second trial in this case which was had under precisely the same circumstances as that in the Capozzi case. As to the question of disallowance of the witness fees in question, we think that the decision of the Special Term should not be disturbed. It does not sufficiently appear that these witnesses were material and necessary witnesses on the second trial. If they were in court they were not sworn, and the explanation offered by the plaintiff’s attorney is that he had subpoenaed them for the purpose of rebutting certain evidence which he anticipated the defendant might offer at the trial. The defendant did offer such in evidence, but it was excluded on the objection of the plaintiff’s attorney, so that there was no necessity for the said alleged witnesses being produced and sworn. ■ We think that a party is not justified in subpoenaing a number of witnesses solely on the theory that the court may make an erroneous ruling which would result in a necessity for their use in rebuttal. The order should be modified by striking therefrom the provision which disallowed the taxation of the costs and disbursements of the first trial, and the taxation of the sum of twenty-five dollars as costs after the order granting a new trial, and as so modified the order appealed from is affirmed, without costs. Jenks, P. J., Thomas, Carr, Rich and Stapleton, JJ., concurred. - Order modified by striking therefrom the provision which disallows the taxation of the costs and disbursements of the first trial, and the taxation of the sum of twenty-five dollars as costs after the order granting a new trial, and as so modified affirmed, without costs.