Stanley Hoisting Co. v. Capitol Realty & Construction Co. , 149 N.Y.S. 523 ( 1914 )

SEABURY, J.

The defendant appeals from an order denying its motion to vacate an ex parte order requiring it to pay to the plaintiff the sum of $73 “disbursements and expenses incurred” as a result of the adjournment of the trial of the action at the request of the defendant. Of the $73 allowed it is- conceded that the defendant is properly chargeable with the sum of $9. The other disbursements are the subject of dispute.

[1] The amount allowed in excess of $9 consisted in fees to be paid to expert witnesses and money paid to witnesses to compensate them for loss of time occasioned by attendance in court. These amounts were not properly taxable under the statute as fees or disbursements, and, being in excess of $5, were allowed in violation of the express provision of section 3255 of the Code of Civil Procedure.

[2] The respondent seeks to uphold the order appealed from, and asserts that a statutory right may be waived by consent of the parties. The difficulty, with this contention is that there is no proof in the record to show that the defendant ever consented to pay these amounts, or that the defendant did any act which could constitute a waiver of . the provision of the statute referred to. It does appear that the defendant agreed to pay witnesses’ fees and disbursements, but in the absence of any evidence on the subject this must be disregarded as an agreement to pay the witnesses’ fees and disbursements, which were properly taxable by law.

The order appealed from is reversed, and the order sought to be vacated is modified, by reducing the amount of fees and disbursements to $9. The appellant is allowed the costs and disbursements of this appeal.

Order reversed, with $10 costs and disbursements, and order sought to be vacated modified, by reducing the amount of fees and disbursements to the sum of $9. All concur.