Walker v. Russell

Campbell, Justice. The action was brought by the president of the Bank of Utica, against a number of persons in dif-' ferent parts of the state, who were individual creditors of Russell & Van Valen, also defendants; the bank claiming that Russell & Van Valen were copartners, and that debts due to the bank on certain drafts drawn by Van Valen and accepted by Russell, were a joint charge upon the assets of Russell & Van Valen. Van Valen didbusiness in his individual name, at Cortlandville, and Russell in his individual name, in the city of Hew-York. Russell and one of his creditors, Allen, appeared as defendants by the same attorney, though they put in separate answers. At the hearing before the referee, they examined some of these co-defendants as witnesses for them, and such co-defendants also gave evidence in their own behalf. On the adjustment of the costs, the clerk allowed but three [92] term fees, and but one bill of costs to Eussell & Allen, and disallowed the charges for witnesses’ fees paid to the co-defendants. The costs were adjusted in March before the amendment of the Code, and under the law in force at the time of the adjustment, but three term fees were recoverable. The clerk was right as to that item. Where defendants appear by the same attorney, as a general rule, but one bill of costs is allowed, where the defence is substantially the same; hut where it is necessary to interpose separate answers, it seems to me the rule should prevail as formerly, when in such cases the attorney was allowed for the pleas of the co-defendants. In this case separate answers were put in, properly, I think, and then, as I infer, the action proceeded and testimony was taken in behalf of Eussell & Allen, jointly. The attorney of these defendants should have been allowed in addition to his bill of costs in Eussell’s case, bis charges for putting in the separate answer of Eussell. As to witnesses’ fees, they are included in the necessary disbursements which the prevailing party has a right to have adjusted and inserted in his judgment. It does not follow that the co-defendant of a party to an action, will necessarily attend on its trial. If he does attend as a party, and during his attendance is examined as a witness, he cannot claim witness’s fees. The law allows him no compensation for his attendance as a party, except the specific charges for trial, &c. Those charges he is entitled to, whether he appears by attorney, or whether he prosecutes or defends in person. . But if it be made to appear that such co-defendant attended solely as a witness, and not as a party, and would not otherwise have attended there as a witness, then it would be difficult to point out the difference between the disbursements to procure the attendance of the co-defendant or of any other material witness. Both disbursements would be necessary. In this case it does not appear from anything before me, that the co-defendants attended solely as witnesses. Without positive affirmative proof on this point, I think the inference should be that they attended as parties as well as witnesses. The clerk was right, therefore, in rejecting that item. ;