#### Johann Reichel, Pl’ff, *v.*The New York Central & Hudson River Railroad Co., Def’t.

*(Superior Court of Buffalo, Special Term,*

*Filed February, 1890.)*

Costs—Referee’s fees—Commissioner to take deposition.

The reasonable compensation of a commissioner or referee appointed to take a deposition and his reasonable and necessary expenses, including actual traveling expenses or the expenses incurred by plaintiff in conveying him to and from the residence of the witness, are properly allowable under § 3256 of the Code. Section 3296 has no application to such a case.

Motion for retaxation of costs.

*Eugene V. Chamberlain*and *Lewis W. LHlmer,*for pl’ff; *James Fraser Gluck,*for def’t.

Beckwith, Ch. J.

This is a motion by the defendant for an order directing a retaxation of plaintiff’s costs, “bydisallowing in said bill of costs twenty dollars of the item of twenty-six dollars fees of *commissioner,*and four dollars of the item of five dollars for serving summons and complaint.” It appears from the papers read on the motion and admissions of counsel on the argument, that Mr. Bishop, a court stenographer, was, by an order of the court, appointed a referee to take a deposition of the witness Philip Sauer, at the house of the witness’ father in the town of Clarence, where the witness was laid up sick with a typhoid fever; that a conveyance was obtained by which the referee and counsel for the respective parties were carried to the residence of the witness in Clarence, and that the testimony was taken stenographically and then reduced to writing by the referee and afterwards used on the trial.

*842The plaintiff’s affidavit as to disbursements states that for such services the plaintiff incurred an expense' of twenty-six dollars.

The defendant claims that only six dollars, for one day of attendance by the referee, was taxable for referee’s fees, citing § 3296 of the Code.

That section, so far as necessary to quote, reads as follows: “ A referee in an *action*or a *special*proceeding, brought in a court of record, or in a special proceeding taken as prescribed in title 12 of chap. 17 of this act (supplementary proceedings) is entitled to six dollars for each day spent in the business of the reference; unless, at or before the commencement of the trial or • hearing, a different rate of compensation is fixed by the consent of the parties.”

A special proceeding is a prosecution by a party for the enforcement or protection of a right or for the redress or prevention of a wrong. Code §§ 3333, 3334.

I do not think that § 3296 embraces the case of a referee appointed, according to § 873 of the Code, to take and file the deposition of a witness. The context of § 3296 shows that the referee there meant is the ordinary referee to try an issue or *to hear*parties respecting a matter, and also the referee in supplementary proceedings. The referee under § 873 is a mere commissioner to take down in writing the testimony of a witness. He is mentioned as a commissioner in the notice of motion and accompanying affidavit and in the bill of costs taxed, but § 873 denominates him a referee. Upon the construction which I have given § 3296, it is necessary to look somewhere else for the allowances to he made for the services of a referee to take depositions. Section 3256 provides for the taxation of “the reasonable compensation of commissioners taking depositions,’’ and “such other reasonable and necessary expenses as are taxable according to the course and practice of the court.” Under these provisions the reasonable and necessary expenses of taking the testimony of Philip Sauer can be, and ought to be, allowed, including the actual traveling expenses of the referee, or the expenses incurred by the plaintiff in carrying the referee to and from the residence of the witness. The sum of twenty-six dollars seems to be-large, and as ihserted in the plaintiff’s bill of costs is for “ commissioner’s fees and disbursements, Philip Sauer’s deposition.” The clerk should re-tax the item, upon proof to be made by the plaintiff showing what his expenditures were for, and the allowance should he only for reasonable and necessary expenses.

A clerk or officer authorized to tax costs in an action must strike out all charges for fees, other than the prospective charges expressly allowed by law, where it does not appear that the services were necessarily performed. An item of disbursements ought not to be allowqd, and cannot lawfully he allowed, unless it appears to have been necessarily incurred, and to be reasonable in amount. Code, §§ 3266, 3267. •