Price v. Western Distillery Co.

GIEGERICH, J. According to the recitals in the order appealed from, the only papers which were before the court on posal of this motion were the affidavits of Herbert J. Hindes, the defendant’s attorney, and Charles L. Craig, the plaintiff’s attorney, and the bill of costs. In these papers the assertion of Mr. Craig that the minutes loaned him by Mr. Hindes were so marked and mutilated that it was unsafe for him to use them in the preparation of his amendments to the proposed case was not disputed. From all that is contained in this record there was nothing before the Special Term which justified it in striking out this item, and it is the settled rule of this department that the amount paid for a copy of the stenographer’s minutes, obtained for the purpose of properly preparing amendments to the case on appeal, is a taxable disbursement. Ridabock v. Met. El. R. Co., 8 App. Div. 309, 40 N. Y. Supp. 938; Bremer v. Manhattan R. Co., 51 Misc. Rep. 96, 99 N. Y. Supp. 746, affirmed without opinion 115 App. Div. 900, 101 N. Y. Supp. 1114; Pratt v. Clark, 124 App. Div. 248, 108 N. Y. Supp. 734. It appears from the opinion that the court at Special Term considered that the original minutes loaned the appellant were in such condition that they could have been used safely by him in preparation of his amendments. But that opinion is no part of the record on appeal. Koehler v. Hughes, 148 N. Y. 507, 42 N. E. 1051; Randall v. N. Y. El. R. Co., 149 N. Y. 211, 43 N. E. 540; Pollatschek v. Goodwin, 17 Misc. Rep. 587, 40 N. Y. Supp. 682; Schmidt v. Livingston, 20 Misc. Rep. 324, 45 N. Y. Supp. 915; Matter of Broderick, 25 Misc. Rep. 534, 56 N. Y. Supp. 99. Appellate courts can only consider those papers which the order itself by its recitals shows were before the lower court. Pollatschek v. Goodwin, supra; England v. Gebhardt, 112 U. S. 502, 505, 5 Sup. Ct 287, 28 L. Ed. 811. If the original minutes were a part of the basis of this order, they should have been recited therein and brought before this court. The order should therefore be reversed, with $10 costs and disbursements, and the case remitted to the Special Term of the court below. All concur.