Edward Valk and Others, Respondents, Appellants, v. Erie Railroad Company, Appellant, Respondent

Edward Valk and Others, Respondents, Appellants, v. Erie Railroad Company, Appellant, Respondent. First Department, November 6, 1908. Costs — taxation — transportation of witnesses on passes — commissioners fees. A. defendant railroad which transported its witnesses to the place of trial on free passes is not entitled to tax-their mileage because of the-mere possibility •that it may thereafter he .called upon-to'pay. "Where depositions are taken by consent without the appointment, of a commissioner, a notary public, employed in the office of one of the attorneys, who did nothing hut administer oaths, the testimony being taken by the respective . parties without agreement as to stenographer’s "fees," is nOt'a commissioner and it is improper to tax his fees as such. Even if such notary be considered- a commissioner; he is- entitled only to reasonable compensation and an allowance, of twenty-three dollars for said service is excessive. Gross-appeals by the plaintiffs, Edward Valk;and others, and by the defendant, the Erie. Railroad Company, from portions of an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk ef the county of New York on the 25th day of May, 1908. Stanley Holcomb Molleson, for the. plaintiffs. Ogden L. Mills, for the defendant. [MAJORITY — Scott, J.:] Scott, J.: Both ■ parties appeal from an order made upon review of the. clerk’s taxation of costs. The defendant-appeals from so much- of the: order -as disallows the mileage of eight witnesses. summoned to the city of New York from Buffalo, and the plaintiffs appeal from so much of the-order as denied their motion to - strike from- the, bill of costs a sum allowed for-commissioners’ fees. The action-involved transactions in Buffalo, and required the attendance of witnesses from that city. The defendant sought to tax mileage at the rate, of thirty-three- and'- eighty-four one-hundredths dollars each for eight witnesses. A majority of these witnesses either now are or recently have been in defendant’s employ, while another is in the employ of a lessee of defendant. The other two are in the employ of other railroad companies. It is conceded that all of these witnesses traveled on free passes issued by defendant, and that defendant has paid no mileage or other sum to any of them, and that no demand therefor has been made. The only plea by which the allowance is sought to be enforced is that, perhaps, the defendant may hereafter be called upon to pay the mileage. The improbability of such a demand, unless the defendant shall invite it in order to mulct the plaintiffs, is obvious. This item was properly disallowed. The court should, however, have gone further and have stricken out the sum allowed for commissioners’ fees, bio order appointing a commission was made, but by consent the depositions of certain witnesses were taken in the office of defendant’s attorneys. A notary public in the employ of such attorneys administered the oaths to the witnesses, but did nothing else.' Each attorney had • his own stenographer present, who took down the testimony, which was not signed by the witnesses, bio agreement was made as to the payment of the stenographers’ fees. For the fees of the notaries who administered the oaths to the witnesses the sum of twenty-three and twenty one-hundredths dollars has been allowed. It should have been disallowed. The notaries were in no sense commissioners, and even if they are to be so considered section 3256 of the Code of Civil Procedure provides that they shall be entitled to “reasonable compensation.” For the services they performed the allowance was unreasonable. The order so far as appealed from by the defendant is affirmed, and so far as appealed from by the plaintiffs is reversed, and the item of twenty-three dollars and twenty cents is disallowed, with ten dollars costs and disbursements to the plaintiffs, appellants. Patterson,, P. J., Ingraham, Laughlin and Clarke, JJ., concurred. , Order on, defendant’s appeal affirmed, and on plaintiffs’ appeal reversed, and item disallowed as stated in opinion, with ten dollars costs and disbursements to plaintiffs. Settle order on notice.