#### Katherine Griffin, Respondent, *v.*Michael L. Flank, Appellant.

(Supreme Court, Appellate Term, First Department,

February, 1913.)

Stenographers—'Obligation to furnish copy of minutes — taxation of fees of, in bill of costs.

There is no obligation on an official stenographer to furnish a copy of minutes transcribed from the notes of his predecessor at the rates provided by law.

Where an expert was employed to transcribe the minutes of a trial taken by a deceased official stenographer, in order to enable plaintiff to make amendments to a case on appeal, and the evidence justifies the finding of the court below that the sum paid for the transcript of said minutes was reasonable, an order denying defendant’s motion to retax said item in plaintiff’s bill of costs as a necessary disbursement will be affirmed.

*416Appeal by defendant from an order of the City Court of the city of Hew York, denying defendant’s motion to retax an item of $175 in plaintiff’s bill of costs taxed as a necessary disbursement.

Rosenthal & Steckler (David Steckler, of counsel), for appellant.

R. Henry Delehanty (Sumner B. Stiles, of counsel), for respondent.

Gerard, J.

This is an appeal from an order denying defendant’s motion to retax a bill of costs upon a judgment of affirmance.

Plaintiff obtained a verdict in her favor, which was not entered until nearly two years thereafter, two months before which time the official stenographer, who reported the trial, died.

Defendant in mailing his case procured the services of an expert to transcribe the minutes and paid him the sum.of $150 and agreed to pay him a further sum of $250 in the event of defendant’s success upon a retrial.

In order to make her amendments to the case plaintiff applied to the same stenographer and obtained u copy of the minutes, agreeing to pay therefor the sum of $175. Upon the taxation of costs the plaintiff taxed this item of $175 over the objection and exception of the defendant. This amount of $175 was in excess of the amount which a stenographer is entitled to charge under section 3311 of the Code.

The appellant claims that the official stenographer having died, the plaintiff was bound to apply to his successor for a copy of-the testimony and that she cannot tax a greater sum than the official stenographer could demand as his fees. It is provided by section 229 of the Judiciary Law as follows : *“*If the stenographer dies or his office becomes vacant before the expiration of the time specified in the last section, the original stenographic notes taken upon trials and hearings must be delivered to his successor in office, to be held by him with like effect, as if they had been taken by him.”

But I have failed to find any statute which requires the *417official stenographer so taking possession of the minutes of his predecessor to transcribe and furnish the minutes taken by that predecessor at the official rates.

Section 300 of the Judiciary Law provides that a stenographer must furnish, gratuitously, copies of proceedings to judges holding a term or sitting which he (the stenographer) has attended.

Section 301 provides that the stenographer shall, upon payment of his fees allowed by law, furnish a certified transcript of the whole or any part of his minutes in any case reported by him, and section 302 makes it the duty of a stenographer to write out proceedings in full on request, and section 303 provides that each stenographer must, upon request) furnish with all reasonable diligence to the parties in civil causes in which he has attended the trial or hearing a copy written out at length from his stenographic notes of the testimony, etc., upon payment of the fees allowed by law.

From these' quotations from the statute it is plainly to be seen that there is no obligation upon a stenographer to furnish a copy of the minutes written out from the notes of his predecessor at the rates provided by law.

A successful respondent is entitled to tax the necessary disbursements and it has been held that where an unofficial stenographer is employed in an action he is not limited as to his fees by the section which applies only to the official stenographers. Eckstein v. Schleimer, 62 Misc. Rep. 625.

La the case at bar an expert was employed to transcribe the minutes of the deceased stenographer and the court below has found as a fact that the sum paid him was reasonable and there is evidence to support this finding in the amount paid to the same expert for the same work by the defendant’s attorneys and Verbank, the expert, makes affidavit that such charge was reasonable.

The order appealed from should be affirmed, with ten dollars costs and disbursements.

Seabury and Bijur, JJ., concur.

Judgment affirmed, with ten dollars costs and disbursements.