
    Melchior F. Topken et al., Appellants, v. The Cunard Steamship Co., Limited, Respondent.
    (Supreme Court, Appellate Term,
    May, 1904.)
    Costs — A charge of foreign lawyers for “ professional services ” rendered the defendant- in executing a foreign commission he took out is not taxable against the plaintiff as a disbursement — Affidavit necessary to a taxation for attendance of witnesses in the Municipal Court of the city of New York.
    An item, in a defendant’s bill of costs, representing a charge made against him by foreign lawyers for “ professional services ” rendered him in connection with the. execution of a foreign commission, issued at his instance, to take the evidence of a foreign witness in his behalf, is not, upon a discontinuance of the action by the plaintiff, taxable against the plaintiff as a disbursement although he consented to the issue of the commission and proposed interrogatories to be put to the witness named therein.
    Section 344 of the Municipal Court Act forbids allowance of a charge for attendance of witnesses without an affidavit stating the number of days of actual attendance.
    Appeal by the plaintiffs from a judgment entered against them in the Municipal Court of the city of New York, upon their discontinuance of the action, and from an order denying their motion for a retaxation of costs.
    
      Baggott & Ryall, for appellants.
    lord, Day & Lord, for respondent.
   Freedman, P. J.

This is an appeal by the plaintiffs from a judgment rendered in the Municipal Court of the city of New York against the plaintiffs upon a discontinuance of their action therein, and also from an order denying the plaintiffs’ motion for a retaxation of costs. The costs in the action, as presented by the defendant for taxation to the clerk, contained the following items.

Costs on discontinuance............. $ 7.50
Interrogatories to annex to commission. 10.00 $17.50
Disbursements.
Affidavits and acknowledgments......... $ 0 24
Attendance of following witnesses:
John Dick...................... .65
Thomas Prior................ .65
Frances McKensie................ .65
Costs of taking foreign commission.... 50.00 52.19
Total............................. $69.69

Upon the taxation the clerk struck out the item of ten dollars charged for interrogatories and taxed the costs at fifty-nine dollars and sixty-nine cents. Attached to the bill of costs thus presented for taxation was the affidavit of the managing clerk of the defendant’s attorney, who testified that “ The foregoing disbursements are reasonable in amount and have been made in the action or will be necessarily incurred therein, to the best of his,knowledge and belief.”

As a basis for the item of disbursements, charged in the bill of costs, as cost of taking foreign commission $50,” the defendant presented a bill from Hill, Dickinson & Co.,” of Liverpool, England, against the defendant as follows:

“Messes. Cunard Steamship Co. Limited. “ To Hill, Dickinson & Co.
“ Topken, Topken and ano., vs. the Co. 1903
“ Nov. Charge for professional services in connection with the execution of the commission to take evidence of the witness
Cristy......................... £10.10
“Paid postage.................... 2/6
£10.12/6

Alter the costs were taxed at fifty-nine dollars and sixty-nine cents the appellants made a motion for a review of such taxation under section 342 of the Municipal Court Act. Upon the review the judge denied the appellants’ motion, except to reduce the item of fifty dollars to the sum oi twenty-five dollars and determined that the defendants were entitled to the sum of thirty-four dollars and sixty-nine cents costs and disbursements. The appellants conceded their liability for seven dollars and fifty cents, and paid the clerk of the court that amount prior to any taxation of costs.

The item of fifty dollars, claimed to have been the “ cost of taking foreign commissions,” and the item of one dollar and ninety-five cents for attendance of the three witnesses named, were improperly allowed. As to the item of fifty dollars-aforesaid, the bill rendered and forming the basis for that charge clearly shows that it was for “ professional services ” rendered the defendant and such services constitute no part of the sum to be allowed a successful party as “ disbursements.” There was no proof that such sum was actually paid, or that it was paid to the commissioner who took the deposition of the witness in England. That the plaintiffs consented to the issuing of a commission, and proposed interrogatories to be put to the witness named therein, is no ground for charging the plaintiffs for professional services ” rendered the defendant upon its execution.

The charge for attendance of witnesses was improperly allowed for the reason that section 344 of the Municipal Court Act provides “ that a charge for the attendance- of a witness, cannot be allowed without an affidavit, stating the number of days of his actual attendance,” etc. This section was not complied with.

The judgment herein is modified by striking therefrom the item of twenty-five dollars and the item of one dollar and ninety-five cents, and as thus modified, affirmed, with costs to the appellant.

Truax and Scott, JJ., concur.

Judgment modified, and as modified, affirmed, with costs to appellant.  