George C. Hudson, Appellant, v. Erie Railroad Company, Respondent

George C. Hudson, Appellant, v. Erie Railroad Company, Respondent. Oasts—what items are taxable where there are several trials. On the trial of an action in June, 1898, the jury disagreed. On a trial in June, 1899, a verdict was rendered in favor of the plaintiff, which the court set aside because of the misconduct of" the jury, ordering “ that the action be replaced upon the calendar of this court and to be tried as though no verdict had been rendered.” In November, 1899, the complaint was dismissed at the- trial court, because of plaintiff’s default, which was afterwards opened upon payment by plaintiff to defendant of the costs Of the term and of the motion. In April, 1900, the case was again tried and a verdict was rendered for the plaintiff. Held, that only fifteen dollars could be taxed for all proceedings after notice and before trial; That, as each of the three trials occupied more than two days, ten dollars in addition to the thirty dollars trial fee was taxable for each of the three trials; That the plaintiff was entitled to tax twenty-five dollars for all proceedings after the granting of and before the'new trial; That jury fees of three dollars having be'en paid by the plaintiff to the first jury, which disagreed, it was a proper item of disbursement and should be allowed; That the plaintiff was not entitled to tax the stenographer’s fees for furnishing the minutes of one trial for use upon the subsequent trial; That the sheriff’s calendar fees should not be taxed in excess of one dollar and a half; That the plaintiff might tax, as a disbursement, the witnesses’ fees for the November term, 1899, notwithstanding the fact that he was obliged to pay the costs of that term to the defendant as a condition of opening his default. Appeal by the plaintiff, George 0. Hudson,' from an order of the Supreme Court, made at the Kings County Special Term and . entered in the office of the clerk- of the county of Orange on the 20th day of August, 1900, denying his motion for a retaxation of costs-and disbursements in the action. Jonathan Deyo [John M. Qar&ner with him on the brief], for the appellant. Henry Bacon, for the respondent. [MAJORITY — Hirsohbbrg, J.:] Hirsohbbrg, J.: The case was tried in Orange county in June, 1898, and the trial resulted in a disagreement of the jury. It was retried in June, 1899, and a verdict rendered in favor of the plaintiff, which verdict the court set aside for misconduct of the jury, ordering “ that the action be replaced upon the calendar of this court and to be tried as though no verdict had been rendered.” In November, 1899, the complaint was dismissed at the Circuit because of plaintiff’s default, which was afterwards opened upon payment by plaintiff to defendant of costs of the term and of the motion. In April, 1900, the case was again tried, and the trial resulted in a verdict for the plaintiff The county clerk on retaxation of plaintiff’s ■ costs struck out various items from the bill, and the Special Term refused to require him to restore any of them. Seven items are in dispute. 1. The sum of forty-five dollars was taxed for costs after notice of trial, and the clerk rejected thirty dollars of this sum. Under the provisions of the Code of Civil Procedure fifteen dollars only could be taxed for all proceedings after notice and before trial. (Seifter v. Brooklyn Heights R. R. Co., 53 App. Div. 443.) 2. Each of the three trials occupied more than two days, and the plaintiff had taxed thirty dollars for the extra time. Of this sum the clerk disallowed twenty dollars. This was' error. Subdivision 3 of section 3251 of the Code of Civil Procedure allows: “ For the trial of an issue of fact, thirty dollars; and where ■ the trial necessarily occupies more than two days, ten dollars in addition thereto.” It is settled, so far as the thirty dollars is concerned, that this item may be taxed for every abortive trial, as where the jury disagrees, and indeed ninety dollars is taxed for the three trials in this case without objection on the part of the defendant. The same right exists to the ten dollars as to the thirty dollars, and if the latter item is properly, taxed three times, the former should also be so taxed. The trial fee is thirty dollars for each trial conducted within the period of two days, and forty dollars for each trial which necessarily lasts longer. 3. The plaintiff had taxed twenty-five dollars for all proceedings after the granting of, and before the new trial, and this item the clerk disallowed. The plaintiff is entitled to it. The language of subdivision 3 (supra) is “ where a new trial is had, pursuant to an order granting the same, for all proceedings after the granting of and before the new trial, twenty-five dollars.” When the jury rendered a verdict at the June term in 1899 the trial, as such, was completed. Nothing, then, remained to be done but to enter judgment. The action of the court in subsequently setting the verdict aside not only necessarily involved the granting of a new trial, but by the express terms of the order a new trial was directed. Such new trial was thereafter had, pursuant to an order granting' the same. 4. The jury fees, three dollars, paid by'the plaintiff to the first jury, have been disallowed because of the disagreement. This item, having been actually paid, is a proper disbursement and should be restored. A juror is entitled to his fees in “ each cause in which he is empanelled.” (Code Civ. Proc. § 3313.) 5. The clerk disallowed the sum of $152 paid by the plaintiff for stenographer’s fees. There are decisions to the effect that the expense of procuring the stenographer’s minutes of a trial for use upon' á subsequent trial may properly be taxed as a disbursement, but the better opinion would seem to be to the contrary. (Hamilton v. Butler, 30 How. Pr. 36 ; Pfandler Barm Extracting Co. v. Pfandler, 39 Hun, 191 ; Pfaudler Co. v. Sargent, 43 id. 154; Whitney v. Roe, 75 id. 508; Shaver v. Eldred, 86 id. 51; Equitable Life Assurance Society v. Hughes, 125 N. Y. 106, 111.) In 1892,.by chapter 185 of the laws of that year, the Legislature amended section . 3256 of the Code of Civil Procedure, so as to make the expense of procuring stenographer’s minutes a taxable disbursement, but the law was repealed before it took effect by chapter 592 of the Laws ' of 1892. • 6. By subdivision 4 of section 3307 of the Code of Civil Procedure the sheriff’s calendar fees are limited to the sum of one dollar and fifty cents, and the clerk was justified in reducing the amount taxed to that sum. 7. The plaintiff being ultimately awarded the right to costs may tax as a disbursement the witnesses’ fees for the November term in 1899, notwithstanding the fact that he was obliged to pay the costs of that term to the defendant for opening the default then taken. The terms imposed by the court for the favor granted, and which have been fully complied with, should measure and limit the extent of the plaintiff’s obligation in that regard. The order appealed from should be so far modified as to require the clerk of Orange county to readjust the plaintiff’s costs in accordanee with this opinion, and as so modified the order should be affirmed, without costs of this appeal to either party. All concurred* except Sewell, J., taking no part. Order modified, requiring readjustment of costs by county clerk of Orange county in accordance with opinion of IIirschberg, J., and as modified affirmed, without costs of this appeal to either party.