Rogers v. Chamberlain

Hiltoh, J. —Upon the trial of this action the defendant was examined as a witness in his own behalf. Judgment having [454] been rendered in his favor, the question now presented is, whether he is entitled to the fees of a witness in travelling from Rochester to attend the trial. The Code (§ 311) requires the clerk, on the application of the prevailing party, to insert in the entry of judgment “ the allowances for costs,” “ the necessary disbursements, including the fees of officers allowed by law, the fees of witnesses, the reasonable compensation to commissioners in taking depositions, the fees of referees, and the expense of printing papers,” &c. The disbursements to be stated in detail, and verified by affidavit. At the time this section was amended and enacted in its present form, section 399 was also amended, so as to permit a party to an action to be examined as a witness in his own behalf, the same as any other witness. It seems, therefore, reasonable to presume that the words “ witness” and “ witnesses,” as thus used, were intended to include every person who gave evidence on the trial of the cause (Best on Evid., § 114); and as to whom, before their fees could be included in the judgment, it was the duty of the clerk to require an affidavit, showing their actual attendance and examination, and the distance they respectively travelled. It is not necessary now, any more than it was previous to the Code, to show that the witnesses had been paid their fees, before they could be allowed in the taxation of the costs; but it is enough to make it appear that they actually attended and were examined as witnesses, and the distance travelled. From this proof the clerk is to determine the fees they are entitled to, and that amount it is made his duty to insert in the judgment. (Wheeler a. Lozee, 12 How. Pr. R., 446.) But it is said that a prevailing party is allowed certain sums by way of indemnity [455] for his expenses in the action, which allowances are termed costs (Code, §303); and that, therefore, he is confined to the costs thus allowed for every act he may be called upon to do in the progress of the cause. To this proposition thus stated I see no objection; but if it is supposed that among the acts he may be called upon to do, is that of being a witness upon the trial, then I ask, can he be compelled to attend the trial at the instance of the adverse party without being first duly subpoenaed and paid his fees for travel-ling and attendance ? And as he certainly cannot, then where is the difference between his attending the trial on his own behalf, and attending on behalf of the adverse party ? In either case the fees for travel and attendance would be those allowed to “ any other witness” for similar service, and it seems to me immaterial whether he earns or becomes entitled to them while acting on his own behalf, or while acting on behalf of the adverse party : except that in the first case, his recovery of them, like his recovery of the fees he may become liable for, or pay to those witnesses whose attendance he requires at the trial, will depend upon whether or not he is the prevailing party; while in the latter case he would receive the fees as a witness, be entitled to them as such, and if defeated in the action, they would be inserted in the judgment entered against him as the fees of a witness who attended and was examined on the trial. (Querissle a. Hilliard, 3 Abboits’ Pr. R., 31.) For these reasons, I am of opinion that the defendant is entitled to have allowed, and inserted in the judgment, his fees as a witness in travelling from Rochester to attend and be examined at the trial on his own behalf.