#### Tracy W. Pratt, Appellant, v. William Irving Clark and Caroline L. Iselin, as Executors of and Trustees under the Last Will and Testament of Charlotte M. Goodridge, Deceased, and Others, Respondents.

First Department,

February 7, 1908.

Costs — disbursements for stenographer’s minutes ordered during trial — when taxable cm appeal.

Disbursements paid for copies of stenographer's minutes of a -trial procured for the purpose of preparing amendments to the case on appeal may be-taxed, . although they were ordered.ahd used during the progress of the trial.'.

But the cost of a transcript of -the minutes of the summing up is not " taxable, " as they are riot a proper part, of the case on appeal; rior are sums paid in-excess of the statutory rate of ten cents a folio to -procure expedition in " order that the minutes might be used during the trial -taxable as disbursements on appeal.

Appeal by the -plaintiff, Tracy W,. Draft, from an order of' .the Supreme Court, made at tile-New York Special Term and entered in the office of the clerk of . the county of New York on the 2.4th day of June, 1907, denying the plaintiff’s motion for relaxation of . costs,

*Clarence F. Birdseye■,*for the appellant. .

; *Albert Stickney, Jr.,*for the respondents. " .

Scott, J.:

The plaintiff appeals from an order denying his motion for the retaxation of a bill of costs. . •

The action was tried at Special Term resulting.in a judgment for defendants, who were-represented by Albert Stickney, Esq.,'Charles I. jMcBnrney, Esq,, and Albert Stickney,- Jr., Esq., guardian *ad litem*for certain infant defendants. Each of .these gentlemen was awarded a separate hill of costs and a separate allowance. Upon-appeal to this court tlie judgment- was affirmed, one hill of costs ■ being allowed.* . It is this bill which is the subject of the present motion, which seeks to strike' out the item -of $339:87 inserted in *249the bill and allowed on taxation. This item appears in the bill of costs as “Paid Stenographer’s Minutes on Trial,” and it abundantly appears that the minutes were ordered and furnished for use on the trial and were so used.

The affidavit of Mr. Albert Stickney, Jr., states that the respondents went into the trial in the firm belief that the appellant would carry the proceeding up to the Court of Appeals if defeated, and he gives the reasons for so believing. He then says: “-It was with bliis situation in view and in the belief and expectation that an appeal would be taken, and for the purpose of using such stenographer’s minutes in preparing amendments to the case on appeal that the minutes were ordered. It having been decided, to obtain such minutes, the stenographer was directed to furnish them from the outset of the trial, and they were furnished by him accordingly as they were written out.”

Since the decision of *Ridabock*v. *Met. El. R. Co.*(8 App. Div. 309) there has been no doubt that a copy of the stenographer’s minutes obtained for the purpose of preparing amendments toa proposed case on appeal is a taxable disbursement. If, therefore, the respondents had waited until after the trial and had then ordered a copy of the minutes solely for the purpose of preparing amendments to the proposed case, their right to tax the cost of the minutes could not be questioned. It is urged, however, that because the minutes were ordered during the progress o.f the trial, and used upon it, their cost cannot now be taxed, notwithstanding they were also used for preparing amendments to the case on appeal. *Gallagher*v. *Baird*(60 App. Div. 29) is cited as authority for that contention. That case arose under peculiar circumstances and involved among other things the construction of a stipulation between attorneys. Furthermore, it appeared that both appellant and respondent liad used the same copies, - and each had paid half the cost thereof, and it clearly appeared that the transcript had not been ordered by either party in the first instance but by the referee before whom the case was tried. Later a similar question arose in *Bremer*v. *Manhattan R. Co.*(51 Misc. Rep. 96 ; af£d. without opinion, 115 App. Div. 900). In that case, as in this, the plaintiffs’ attorney made affidavit that he had reason to believe that an appeal would be taken in any event, and that he ordered the minutes for the *250purpose of preparing a case on appeal, or amendments to a case, as the judgment at Special Term' might require. It also appeared that having,obtained a copy of the minutes he used them in preparation of his brief at Special Term. He was permitted to tax the item, the court, saying: “The fact that the minutes were used by 'the plaintiffs’ attorney in the preparation of the brief, if such was the fact, has not increased the burden of the defendants,- who are in no worse position than they would have been had the plaintiffs waited until after the decision before procuring the minutes. The plaintiffs may have had an incidental benefit in the use of the minutes in making their brief, but this benefit is not wholly gratuitous because they took the risk of having to pay for the minutes themselves if the event proved that they were mistaken in their anticipation .that there would be an appeal.” In our opinion, the reasoning in the case- last cited applies to the present -case and the respondents were entitled to tax the amount properly payable and paid for stenographer’s minutes ordered and used for preparing amendments to the case on appeal even although they had also been used on the trial. They were not, ■ however, entitled to-tax that item at the amount included in the bill of costs. There are included among the papers before us three receipted bills for transcripts qf stenographic notes. , One charged to Mr. Albert Stickney, Jr., is for testimony taken ón October twenty-third, twenty-fourth, twenty-fifth, twenty-sixth and twenty-seventh and November sixth, to the end of the forenoon session, 1¿422 folios at fifteen cents, amounting to $213.30. The second bill is charged to Messrs. Stickney, Maclay & McBurney (the firm of which all the respondents’ ■ attorneys were members), and is for the same testimony, but at fifteen, twenty and twenty-five cents a folio and.amounts to $297.05. The' third' bill is charged to the same- firm, and is stated to be for stenographic service in furnishing transcripts of minutes’ over night during the trial, and includes three items, to wit, November sixth (two copies), afternoon session, November eighth (two copies), November tenth (one copy) (summing up). This bill amounts to $169.40. The sum charged in the bill of costs is arrived .at by adding these three bills together and dividing by two. It is quite evident that no incon- : siderable part of these charges is for expedition owing to the .necessity of having the minutes of each day for use on the next. day, *251and there can be no justification for charging as part of the costs on appeal the costs of a transcript of the summing up as that could form no proper part of - the case on appeal. The statutory fees* which stenographers in New York county are entitled to charge for furnishing a transcript of the minutes is ten cents a folio, and since no expedition is required when minutes are needed for making a case on appeal, or preparing amendments thereto, no more than this should be taxed as a disbursement, even although the party procuring the minutes, for his own convenience, has seen fit to pay at a higher rate for expedition. The bill for §169.40 appears on its face to include something for expedition, and to also include a transcript of the summing up. It is impossible to say from anything in the papers before us how much of this bill, if any part, may be properly taxed. The item for stenographer’s fees must, therefore, he reduced to $142.20, the statutory fee for 1,422 folios at ten cents a folio, and the order appealed from will he so modified, and as modified affirmed, without costs to either party.

Patterson, P. J.,. McLaughlin, Laughlin and Clarke, JJ., concurred.

Order modified as directed in opinion, and as so modified affirmed, without costs. Settle order on notice.

*

 See 118 App. Div. 633.— [Rep.

*

 See Code Civ. Proc. § 3311 — [Rep,