
    The People ex rel. New York Central and Hudson River Railroad Company, Relator, v. The State Board of Tax Commissioners, Defendants, and the City of New York, Intervenor. (Taxes of 1905 to 1908, Inclusive. Four Proceedings.)
    (Supreme Court, Albany Special Term,
    May, 1913.)
    Costs — relaxation of — stenographer’s fees for copy of minutes.
    Where it was the intention, under stipulations made in four proceeding's against the state board of tax commissioners to review assessments for the years 1905-1908, inclusive, that the successful party should be entitled to tax as costs the fees for copies of the stenographer’s minutes furnished to counsel for the opposite parties, a motion by the city of New York, intervener, which by the final order in each proceeding was awarded costs against relator, for a retaxation of costs so as to include in each an item for stenographer’s fees for a copy of the minutes furnished to the counsel of the intervenor and for another copy furnished to the attorney-general, will he granted.
    Motion in each proceeding for a relaxation of costs.
    Archibald B. Watson, corporation counsel, and Addison B. Scoville, for motion.
    Yisscher, Whalen & Austin, for relator, opposed.
   Chester, J.

The motions are made by the city of New York, the intervenor herein, to retax its bill of costs in each of these four proceedings so as to include in each of them an item for stenographer’s fees which was refused taxation by the county clerk. Under the final order, the city of New York, the intervenor, has been awarded costs against the relator.' The relator has already paid the stenographer’s fees for a copy of the minutes furnished the referee and these motions involve simply the question as to whether it is also bound to pay for one copy of the minutes furnished to the counsel of the intervenor and for another copy furnished to the attorney-general.

These stenographer’s fees are clearly not taxable except in pursuance of a stipulation having the force and effect of a contract between parties. With respect to the proceedings to review the assessments for each of the years 1907 and 1908, it appears very clear that a binding and effective stipulation was made and entered in the minutes. That stipulation is as follows : “It is stipulated that the referee be authorized to employ a stenographer in this proceeding who shall charge the usual rates for taking and transcribing said testimony and furnish one copy for the referee, one to the relator, one to the attorney-general, and one to the corporation counsel’s office, and that the fees of the stenographer shall be taxed as a disbursement by the successful party herein.”

The intervenor having paid the fees of the stenographer for the copy furnished to the attorney-general and the copy furnished to the corporation counsel, it appears to me clear that pursuant to this stipulation and under section 47 of the Tax Law, which provided that the ‘ necessary and proper expenses and disbursements ” may be included in the costs, the intervenor is entitled to have these stenographer’s fees taxed and included in its costs.

With respect to the proceedings for the years 190-5 and 19-0'6, the stipulation is not quite so clear. The following appears in the minutes: “ Mr. Lyman: I suppose we can stipulate that the referee be authorized to employ a stenographer who shall charge the usual rates for transcribing the minutes and furnishing one copy for the referee, and one to each of the parties represented. Mr. Burke: I wish to have one copy furnished to Mr. Cohalan, and also one copy to Mr. Coleman of the Corporation Counsel’s office. Mr. Lyman: Then you want two copies. Mr. Burke: Yes. Mr. Lyman: States that they will desire two copies and the relator will take one and the referee one, and the fees of the stenographer to be taxed as a disbursement by the successful party.”

But even in the stipulation last above quoted it appears that two copies, one for the counsel of the state, and one for the counsel of the city, were in the contemplation of the parties. The proceeding for the four years having been- carried along together and the quoted stipulation for the years 1905 and 1906 having been followed by the stipulation above quoted for the years 1907 and 1906, it is evident that the parties intended to provide for all four years on practically the same basis and that these stipulations were effective as agreements that the successful party should be entitled to the taxation in its costs if it became entitled to costs of the fees for the stenographer’s minutes furnished to the counsel for the opposite party or parties.

I think the items involved should be retaxed and included in the bills, with ten dollars costs of one motion to. the city of New York.

Motion granted.  