Taaks v. Schmidt , 25 How. Pr. 340 ( 1863 )

Barnard, Justice.

The only authority for allowing double costs is to be found in the provisions of the Bevised Statutes, which have been held in this respect not to have been repealed by the Code. Those provisions, however, do not in my view apply to actions in equity.

Double costs cannot be allowed in this case. A trial fee on a reference to take an account or to ascertain damages cannot be taxed. Witnesses’ fees and mileage for parties can be charged on an affidavit made by them that they attended as witnesses, and would not have attended except for the purpose of being witnesses. I think the attorney of record is entitled to a witness’s fee for the day on which he was sworn and testified, but not to mileage.

The affidavits as to attendance of witnesses are not sufficient.

The days on which witnesses attended should be stated; it should also be stated whether they attended each time on subpoena or not; the distance from the place of residence of each witness to the court-house by the usual modes of traveling should be given. If a foreign witness, then the distance from the point where persons coming from his place of residence to the city of New York usually enter the state to the court-house by the usual route must be given.

If the witnesses do not attend upon subpoena, then their affidavits that they attended at the request of the party for the sole purpose of being witnesses, and would not otherwise have come to the city, town or village where the court was held, should he produced.

This is a proper case for two bills of costs. But only one set of witnesses’ fees can be taxed for the same witness, unless affidavits are produced showing that the witness was subpoenaed by both parties, or, if subpoenaed by neither, then that he was requested to attend by both, and attended on such joint request. This affidavit should be made by the party who subpoenaed the witness, or, in case of request, by the party who made the request. The adjustment must be set aside and a readjustment ordered on the above principles, on which readjustment the affidavits as to the attendance of witnesses may be presented to the clerk.