Toll v. Thomas

C. L. Allen, Justice. That part of the motion which moves to set aside the judgments, cannot be granted. If the costs have been improperly adjusted, the court will order a re-adjustment and direct the amount, if less than at the first adjustment, to be deducted from the judgment, or from the execution, if any have been issued, allowing the judgments to stand. [318] In the present case, the objection to the allowance for calendar or term fee, does not seem to have been well taken. One of the attorneys for plaintiff, swears that the actions were all referred by consent of parties, and that the costs of that circuit were to abide the event of the action in each case, and copies of the stipulations are annexed to the affidavit. Whether these stipulations were exhibited to the clerk or not, , does not appear. It would rather seem not; but the affidavit of the defendant’s counsel does not state that this objection was taken specifically. If it had been, the stipulation would probably have been exhibited. The items for certified copy orders of reference, were properly allowed. They were evidence for the referee, and his authority to act in case of objection. It is both common and proper to procure them. The referee’s fees were sworn to have been paid in the general affidavit of disbursements. Besides, the receipt of the referee in each case, is now produced, showing the actual payment to and receipt by him of the amount charged. In relation to the witnesses’ fees, the affidavit seems to- be full, except that it does not depose that thá witnesses each attended in pursuance of the advice of counsel. It has been decided in many cases, that the affidavit must state the respective names and places of abode of the witnesses, the distance they respectively travelled, and that each of them was or was believed to be, a material and necessary witness, for the party on whose behalf he was subpoenaed. Their materiality need not be shown in the first instance, until the opposite party shall have raised a suspicion that they were subpoenaed or otherwise called for the purpose of swelling the bill. The presumption is good faith till contrary is shown. If the adverse party shows that a number of witnesses were not called on the trial, the party calling for the expense of their attendance, must explain why they were not called, or the expense of their attendance should be disallowed. The clerk then, is not longer at liberty to follow the ordinary affidavit. (5 Hill, 595 3 id. 457; 6 id. 376; 19 Wend. 82; 6 How. [319] 410.) In this last case, the affidavit stated that the witnesses attended under the advice of counsel, and I believe that such is the usual affidavit. Here, however, the defendants did not specifically object that the affidavit failed to state such fact, or it might have been, and probably would have been supplied. Indeed, no other objection seems to have been taken, than the general indefinite one, that the affidavit was insufficient, without specifying wherein. The last item objected to, is the item for transcript and docketing. The affidavit of defendant’s counsel, shows that the defendants in all the cases but the two first, reside in the county of Schoharie. There was probable necessity, therefore, for transcript and docketing in that county in the last four cases. In the two first, the plaintiff must deduct 25 cents in each. The motion must be denied, but as there was some probable cause for making it, it must be .without costs. Order accordingly. A motion was also made at the same term, in these causes, and in two others in favor of the same plaintiff—one against Silas Brown, and the other against Martin A. Watson-—for an order staying proceedings in all the actions but one, until the decision of the general term might be obtained in the first action, or to abide the event of said action. C. L. Allen, Justice. I know of no power that the court possesses to grant this motion. The plaintiff has regularly obtained judgment, in each of the actions, which are against different individuals. It is said that the same questions are involved in each action. One of the attorneys for plaintiff, swears that the pleadings are materially different; that in some of the actions questions of fraud were raised by the answer of defendants, and that in others the answers were simply denial; that objections were taken on the trial on the pleadings to testimony offered in some which were not made in, nor were applicable to the others, and that the testimony on the part of plaintiff in some cases was different from that given in the others. This would seem to dispose of the ap [320] plication. But be this as it may, the court cannot stay the plaintiff in the execution of his several judgments, unless the defendant avails himself of his right to do so, by appeal. After the causes are appealed at general term, the court may, on proper application, where it is made to appear that a decision in one cause will dispose of all the questions in the others, grant an order to hear an argument in one, and that the others abide the result of that one, or they may refuse to hear but one argument, as they sometimes refuse to try but one cause at the circuit where several are on the calendar involving the same points. It is said that the court may order a stipulation or undertaking, requiring the defendants in each case to abide the event of the decision in the first action, as asked for. But if the court have no power to grant an order staying the proceedings, they can require no undertaking which would be binding on the parties; such an undertaking would be utterly void, and in the meantime if defendants should become insolvent, the plaintiff would be entirely remediless, and his loss be thus occasioned by the unauthorized interference of the court. The motion must be denied with $10 costs. Order accordingly.