#### Patrick Gallagher, Plaintiff, *v.*Matthew Baird, Defendant.

(Supreme Court, New York Special Term,

December, 1900.)

Costs — Stenographer’s minutes necessarily used to prepare amendments to the case taxable in the first department.

In an action in the first department in which the plaintiff succeeded, it appeared that the defendant’s attorney declined to stipulate that the testimony be taken, by a stenographer, that thereupon the referee employed one who kept the minutes for him and furnished a copy to the plaintiff’s attorney, that after findings had been settled the referee sent the original and the copy to the plaintiff’s attorney who, in order to keep possession of either, was forced to promise the stenographer that he would pay his whole bill, that the defendant’s attorney thereafter consented that the clerk tax one-half of the bill, that thereafter the defendant’s attorney as a condition of procuring the copy in order to prepare a case on appeal paldi the plaintiff’s attorney one-half of the bill but without prejudice to any right the latter might have to tax the other half if he succeeded on th'e appeal, and that the original was necessarily used by the plaintiff’s attorney .in preparing amendments to the case. On a motion for a retaxation,

Held that the taxation of the one-half of the bill, which had not been paid by the defendant, was proper and must stand, as the original minutes were necessary to the preparation of the plaintiff’s amendments, and because it appeared that neither the original nor the copy could be retained by his attorney, unless the latter promised the stenographer to pay the whole bill.

Motioh to direct a retaxation of costs.

*355George 0. Comstock, for plaintiff.

Bettretch, Silkman & Seybel, for defendant.

Andrews, G. P., J.

Motion to direct a retaxation of costs. The materials facts involved in this matter are as follows: The action was sent to a referee to hear and determine the same; the defendant’s counsel declined to' make a stipulation under which the testimony should be taken by a stenographer, whereupon the referee himself employed a stenographer who took 1448 pages of typewritten minutes; during the trial from time to time the stenographer furnished copies of his minutes to the plaintiff’s attorney, and the defendant’s attorney borrowed and used the copy of the referee; in making up the briefs, defendant’s attorney borrowed from the referee and used the original minutes, and the plaintiff’s attorney used the copy which had been furnished to him; judgment was ordered by the referee in plaintiff’s favor, and both copies of the minutes were returned to him; after the findings were settled he sent all the papers, including the two copies of the stenographer’s minutes, to plaintiff’s attorney; the stenographer, having made out a bill for $1,099, then saw the plaintiff’s attorney and insisted that he should pay the whole bill, and, being asked to try to obtain payment of one-half of it from defendant’s attorney, declined to do so on the ground that the bill could not be divided; plaintiff’s attorney then obligated himself or the plaintiff to pay the whole bill, and presented a bill of costs to the "clerk with the whole bill included in it; defendant’s attorney objected to the taxation of the whole bill, but consented to the taxation of one-half of it, and it was thereupon so taxed; defendant’s attorney then applied to plaintiff's' attorney for a loan of one copy of the minutes for the purpose of preparing a case, and plaintiff’s attorney declined to comply with the request; whereupon, by agreement between the two attorneys, the plaintiff’s attorney delivered to the defendant’s attorney one copy of the minutes, being paid by the latter one-half the stenographer’s bill; the letter from the plaintiff’s attorney to defendant’s attorney, sending such copy of the minutes, contained the statement that the copy was sent without prejudice to any right the plaintiff might have to tax the other half of the cost of the minutes in case he should succeed upon the appeal. Defendant’s attorney now moves for a retaxation of the costs, and asks that, one-half the *356stenographer’s bill, which was allowed, be stricken out. Upon this state of facts, which I believe to-be strictly accurate, I think the case of Ridabock v. Metropolitan Elevated R. Co., 8 App. Div. 309, is controlling. Plaintiff’s counsel, in order to get either the original or a copy of the stenographer’s minutes for use on the appeal, was obliged to promise and did promise to pay to the stenographer the whole amount of his bill, $1,099, upon the claim made by the stenographer that the bill could not be divided. When the copy of the minutes was delivered by plaintiff’s attorney to defendant’s attorney upon the latter’s payment of one-half the stenographer’s bill, it was accompanied by a statement that such delivery was made without prejudice to the right of the plaintiff to tax the other half. Although the plaintiff’s attorney had received from time to time, as the trial went on, a copy of the minutes for use during the trial, after such copy had been sent to the referee and by the referee returned, with the original minutes, to the plaintiff’s attorney, the latter was obliged to agree to pay the whole of the stenographer’s bill; and it appears that the minutes, which the plaintiff’s attorney retained after making such promise and after delivering one copy to the defendant’s attorney, were absolutely necessary to enable him to prepare amendments to the case, and that they were actually used in preparing such amendments, as the work could not be done without them. It thus appears that neither the original nor the copy could be retained by the plaintiff’s attorney without promising to pay the whole bill, and, as the original minutes were necessary for the preparation of such amendments and were actually used in such preparation, plaintiff, under the Ridaboek decision, was entitled to tax the other half of the stenographer’s bill. This seems to be just upon the merits, for the plaintiff has been successful, and I see no reason why he should not be allowed to tax the other half of the stenographer’s bill, which he has bound himself to pay. Motion for retaxation denied, with ten dollars costs to abide the event of the action.

Motion denied, with ten dollars costs, to abide event.