Lawson v. Hill

Martin, J. This court held, in the case of Inderlied v. Whaley, (Sup.) 7 N. Y. Supp. 74, that, where the costs of a term were required to be paid by an order postponing a trial, the disbursements rendered ineffectual by such postponement, including witness fees paid for the term, which could not be recovered back, were a part of such costs. It was also held that, to authorize an allowance for witness fees in such a case, the affidavit used before the taxing officer must show the residence of each witness, the distance traveled, that the party claiming them had paid or was liable for such fees, and that the sums paid were rendered ineffectual by such postponement. Section 3255 of the Code of Civil Procedure1 limits the power of the court on adjourning a trial to requiring the party applying for the adjournment, as a condition thereof, to pay $10 costs, the fees of witnesses, and the taxable disbursements rendered ineffectual by the adjournment. Kennedy v. Wood, (Sup.) 7 N. Y. Supp. 90. We do not think the respondent’s claim that putting the case over the term was not an adjournment, within the meaning of section 3255, can be sustained. That that section was intended to apply to postponement of a trial from one term to another, as well as a postponement to a later day in the same term, we have no doubt. Hence it follows that the conditions imposed could be none other than those mentioned in that section, and the plaintiff did not, by virtue of the order postponing the trial in this case, become entitled to any fees or disbursements except those mentioned in section 3255. The important question on this appeal is whether the affidavit of the plaintiff was sufficient to justify the clerk in taxing the witness fees allowed. The plaintiff’s affidavit failed to show when the witnesses named therein were subpoenaed, and therefore failed to show that the fees were a disbursement already paid or incurred when the order to postpone was granted; nor did the affidavit show the residence of the witnesses, the distance traveled by each, that the plaintiff had paid out or become liable for the fees claimed, or that they were rendered ineffectual by the postponement. We think the plaintiff’s affidavit was insufficient to justify the clerk in taxing the witness fees allowed; that he erred in overruling the defendants’ objection to the sufficiency of the plaintiff’s affidavit; that the order appealed from should be reversed, an order granted directing .a new taxation of plaintiff’s costs and disbursements before the clerk of Oneida county, and upon such retaxation either party should [906] have leave to furnish such additional affidavits and papers as he or they may deem proper and necessary. Order of special term reversed, with $10 costs and disbursements of this appeal, and motion for new taxation before the clerk of Oneida county granted, with leave to use upon the new taxation such further affidavits orpapers as either party shall deem necessary. Footnotes [1] Provides that, where application is made to a court to adjourn a trial, payment to the adverse party of a sum not exceeding $10, besides the fees of his witnesses and other taxable disbursements, already made or incurred, which are rendered ineffectual by the adjournment, may be required as a condition of granting the adjournment.