#### Mary E. Bormay, Plaintiff, *v.*John K. Van Ress and Dyckman Waldron, Defendants.

(Supreme Court, New York Trial Term,

March, 1899.)

Attorneys — Stenographer’s fees of an unsuccessful attempt to disbar may be recovered of tne parties.

While the Appellate Division has discretionary power to direct a county to pay the expenses of a proceeding to dishar an attorney, yet, where it has not acted in that regard, the assignee of a stenographer who, by the consent of the party taking the proceeding and that of the attorney himself, has taken the testimony and furnished copies to the referee and to the parties, may recover the value thereof of the parties by action as they are the only persons benefited, the proceeding having been dismissed, with costs.

Action by plaintiff as assignee of William E. Bonynge to recover fees as stenographer.

Coleman & Donohue, for plaintiff.

John K. Van Ness, defendant in person.

C. R. Ironside, for defendant Waldron.

McAdam, J.

The action is to recover fees earned by taking stenographic notes of evidence in a proceeding instituted by the defendant Waldron to disbar the defendant Van Ress. Mr. William F. Bonynge, the plaintiff’s assignor, was selected to act as stenographer by the consent of both defendants. He took notes of the testimony, furnished one copy to the referee and one to each of the defendants. They accepted the stenographic services, knowing that Bonynge, the stenographer, expected compensation therefor from them. Indeed, the defendants were the only persons who *600benefited by Ms services, and to whom he could look for pay. These circumstances sufficiently establish an employment. Harry v. Hilton, 11 Daly, 232; Coale v. Suckert, 18 Misc. Rep. 76; Nealis v. Meyer, 21 id. 344; Thornton v. Tuttle, 20 Abb. N. C. 308; Ryan v. Rand, id. 315; Varnum v. Wheeler, 9 Civ. Pro. 421. The defendants insist that this rule applies oMy to ordinary references and not to one ordered in a proceeding to disbar an attorney, which is of a public nature and quasi-criminal, and that in such case the expenses must be paid by the county. Citing Code Civ. Pro., § 68; Matter of Brewster, 12 Hun, 110; Matter of Kelly, 59 N. Y. 596; Matter of an Attorney, 83 id. 166; In re Orton, 54 Wis. 380; Matter of *V.,*an Attorney, 10 App. Div. 513. These authorities certainly show that discretionary power is conferred upon the Appellate Division to “ make an order directing the expenses of such proceedings to be paid by the county,” etc., but the power is not mandatory, to be exercised under any and all circumstances, but judicial, to be exercised as justice requires. In the Matter of Kelly, *supra,*the court, instead of directing the county to pay, letermined that the proceeding was instituted in bad faith, and directed that the applicant pay all the costs and disbursements incurred, by way of indemnity to the injured party, and the order was sustained upon appeal. In the present instance, the court did not direct the county to pay, but dismissed the proceedings with $50 costs and disbursements, evidently deeming this a sufficient indemnity to the successful party therein, without mulcting the county with the expense. Whether Van Hess can ultimately recover from Waldron as part of his necessary disbursements whatever sum he may be required to pay to the plaintiff is matter of no concern whatever to her. She has no claim for services against the county and no means whatever of obtaining an order directing the county to pay. She must look to the defendants as of course, and they must respond whether they obtain reimbursement or not. There must be judgment in favor of the plaintiff for $918.25, with $164.55 interest, aggregating $1,077.80.

Judgment for plaintiff.