#### David Wiener, Respondent, *v.*Joseph Rudinsky and Harry Rudinsky, Appellants*.*

(Supreme Court, Appellate Term, Second Department,

April, 1913.)

Costs — taxation of — stenographer’s minutes — appeal.

Upon the affirmance of a judgment of the Municipal Court of the city of New York in plaintiff’s favor, the respondent is not *235entitled to tax in Ms bill of costs, as a necessary disbursement, the sum paid for a copy of the stenographer’s minutes obtained for use in making amendments to the proposed ease on appeal.

Appeal from so much of the judgment of the Municipal Court of the city of New York, borough of Brooklyn, fourth district, as imposed seventy-five dollars costs upon the defendants for a disbursement for a copy of the stenographer’s minutes.

M. Carl Levine, for appellants.

John Bogart, for'respondent.

Kapper, J.

The defendants seek to review the taxation of a disbursement of seventy-five dollars, made by the plaintiff for a copy of the stenographer’s minutes said to have been used for the purpose of making amendments to a *proposed ease*on appeal from a judgment wherein the plaintiff was respondent and defendants appellants, and which appeal resulted in an affirmance, with costs. That the plaintiff ordered and paid seventy-five dollars for a copy of the stenographer’s minutes of the trial is not disputed. The right, however, to tax this disbursement depends upon the necessity for its incurrence. Mun. Ct. Act., § 344. It is sought to justify the taxation by analogy to the cases in courts of record where the ordering of a copy of the stenographer’s minutes was held proper and necessary for the purpose of preparing amendments to a proposed case on appeal. Ridabock v. Met. El. R. Co., 8 App. Div. 309; Pratt v. Clark, 124 id. 248. But the practice on appeals from judgments of courts of record is different from that obtaining in cases of appeals taken from the judgments of the Municipal Courts. In the former, by rule 34, General Rules of Practice, “A case or exceptions shall not contain the evidence *in hese*
      *236
      *verba,*or by question and answer, unless ordered by the judge or referee by or before whom the same shall be settled.” The practice further calls for the proposal of a case by the appellant to which the respondent may propose amendments which must first be allowed or disallowed by the appellant who is required to mark upon his proposed case and upon the stenographer’s minutes the parts to which the proposed amendments are applicable, and the respondent is required to refer at the end of each amendment proposed by him to the proper page of such minutes. Such is not the practice on appeals from Municipal Courts'. There a case on appeal is not made up as in the courts of record, but the clerk of the court below is required to make a return which must contain all the proceedings ‘ ‘ including the evidence ” (Mun. Ct. Act, § 317), and by the rule adopted by the Municipal Courts (rule 16) the return on appeal is required to contain among other things “ the 'stenographer’s minutes which shall be transcribed by the stenographer. ’ ’ While provision is made in the Municipal Court Act (§ 318) for the settling of a case on appeal, it is not necessary for the respondent to order the stenographer’s minutes for that purpose. When a transcript of the stenographer’s minutes of testimony given on a trial becomes a necessary part of the record on appeal, the appellant is required to pay therefor ten cents for every hundred words which is afterwards taxed by him as a disbursement on appeal if he prevails. Mun. Ct. Act, § 353. And by the rules of such courts heretofore referred to (rule 17) the stenographer’s fees are to be deposited by the appellant with the clerk of the court below who, when the stenographer shall deliver his transcript to the clerk who makes up the return as required by section 317 of the Municipal Court Act, shall thereupon deliver the money *237so deposited to the stenographer. It is clear, therefore, that an inspection of the stenographer’s minutes may be made at the clerk’s office by the respondent whenever necessary and that any expenditure made by him for another copy cannot be held to be a necessary disbursement within section 344 of the Municipal Court Act which provides for the taxation or allowance of disbursements necessarily incurred.

In Cohen v. Weill, 33 Misc. Rep. 764, it was held error to allow plaintiff as part of his costs the expense incurred by him in obtaining a transcript of the stenographer’s minutes which was furnished to the court below, and with that conclusion we agree.

The judgment is modified by deducting therefrom the sum of seventy-five dollars, included in the taxation of costs for a copy of the stenographer’s minutes, with ten dollars costs and disbursements of the appeal to the appellant to be set off against the plaintiff’s judgment pursuant to section 324 of the Municipal Court Act.

G-abeetson and Blackmab, JJ., concur.

Judgment modified.