#### Dora Vibbard, as Executrix, etc., of Harry R. Vibbard, Deceased, Respondent, *v.*Kinser Construction Company, Appellant.

Third Department,

June 28, 1911.

Costs — stenographer’s minutes.

Where the court at Special Term has passed upon the reasonableness of witness’ fees charged in a bill of costs it is not required to order a retaxation although, the clerk may have determined the amount under the wrong section of the Code of Civil Procedure.

Where on a motion for a new trial there is a dispute as to the testimony of one of the witnesses, and the court directs one of the counsel to furnish the testimony, the stenographer’s fee for transcribing such evidence is part of the taxable costs.

But where the stenographer furnishes to the party all the minutes of the trial the bill for the other testimony should not be included.

Where on a second trial the testimony of another witness is by stipulation read from minutes so furnished, and the amount of witness’ fees saved thereby is in excess of the cost of the minutes of his testimony on the first trial, it is proper to tax also the fee of the stenographer for furnishing the testimony of this witness.

Appeal by the defendant, the Kinser Construction Company, from an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Saratoga on the 1st day of May, 1910, denying the defendant’s motion for a retaxation of costs.

*Bockwood,*- *McKnight & McKelvey [L. B. McKelvey*of counsel], for the appellant.

*Edgar T. Brackett*[ *James A. Leary*and *Walter A. Fullerton*of counsel], for the respondent.

Kellogg, J.:

The action was tried and a motion upon the judge’s minutes for a new trial was made and argued. A dispute' arose as to the testimony of the witness Duprey. The court directed written briefs to be submitted and that counsel furnish that portion of the testimony of said witness which referred to the speed at which the crane' was moving just prior to the time of the accident. Thereupon the plaintiff ordered the.stenographer *674to furnish the testimony of Duprey, hut the stenographer furnished the minutes of the entire trial. The testimony of -. Duprey was submitted to the court, and the plaintiff in his brief made numerous quotations from and references to the •testimony of other witnesses.

The clerk included in the disbursements fifty-five dollars and twenty-nine cents, the cost of the stenographer’s minutes, and ten dollars, the fee of a referee who was appointed at the instance of the plaintiff to take the evidence of. his testator before action brought.

The Special Term refused to strike from. the bill of costs these two items or to order a retaxation with reference thereto. As to the witness’ fees, I think the order' is right. It is. unnecessary to consider whether technically .these fees are fixed by section 3296 or are to be fixed by the court under sub-división 3 of section 3251 of the Code of Civil Procedure.. The Special Term, after hearing, refused to strike them out and, therefore, passed upon their reasonableness, and, having found ■ them reasonable, was not required to order a retaxation with reference to them.

■ "We held at our last March term in *Federal Smelting Co.*v. *Security Steel & Iron Co.*(145 App. Div. 898) that stenographers’ fees for minutes obtained for use upon another trial were not taxable, *following Hudson*v. *Erie R. R. Co.*(57 App. Div. 98) and *Herrmann*v. *Herrmann*(88 id. 76).

In the case at bar it was unnecessary to obtain the stenographer’s minutes for use upon the hearing of the motion for a new trial. . The court had practically passed upon that subject by requiring only certain parts of Duprey’s testimony to be furnished. If the minutes, other than the parts of Duprey’s testimony required, were furnished by mistake, that is no reason-why they should be taxed as a disbursement in the case, and the fact that the plaintiff referred to them in his brief does not change the situation; The fifty-five dollars and twenty-nine cents was, therefore, erroneously taxed- by the clerk. The plaintiff, hbwever, was authorized to tax as a disbursement the reasonable cost-of the .minutes of the testimony of Duprey which was furnished.

Pursuant to stipulation, the evidence of the witness Banks *675was read upon the second trial from the stenographer’s minutes and the amount of witness fees saved thereby is in excess of the cost of the minutes of his testimony upon the first trial. Under the circumstances, I think it is also proper to tax the fees of the stenographer in furnishing the testimony of this witness.

The order appealed from is affirmed as to the referee’s fees and reversed as to the stenographer’s fees, and the matter remitted to the county clerk, with direction to retax the stenographer’s fees allowing only the cost of the testimony of Duprey and Banks. No costs of this appeal are allowed.

All concurred.

Order affirmed as to the referee’s fees, reversed as to the stenographer’s fees, and the matter remitted to the county clerk, with directions to retax the stenographer’s fees allowing only the cost of the testimony of Duprey and Banks.