
    Inderlied et al. v. Whaley.
    
      (Supreme Court, General Term, Fourth Department.
    
    September, 1889.)
    1. Costs—Witness Fees—Affidavit.
    Under Code Civil Proo. N. Y. § 3267, providing that witness fees cannot be allowed without an affidavit stating the number of days of actual attendance, and the distance for which travel fees are allowed, affidavits failing to state the distance the witnesses severally resided from the place of trial are insufficient.
    2. Same—Indemnity Bond.
    Where an application for postponement of trial is granted with an order that plaintiff! indemnify defendant for costs in preparation for trial, such order includes witness fees paid out, which were rendered ineffectual by the postponement, and also fees paid witnesses' who did not attend court, where the latter cannot be recovered back.
    Appeal from circuit court, Delaware county.
    Argued before Hardin, P. J., and Martin and Mbrwin, JJ.
    
      Marvins & Hanford, for appellants. W. H. Johnson, for respondent.
   Martin, J.

This case was on the calendar of the Delaware circuit, held

in February, 1889. The plaintiffs applied to the court for a postponement of the trial. This application was granted on terms. The terms imposed were that the plaintiffs should pay the defendant his costs of the term, to be taxed by the clerk of Delaware county. In pursuance of this order, a bill of the defendant’s costs and disbursements was prepared by him, and taxed by the clerk at the sum of $75.33. Included in the bill as thus taxed was the sum of $65.33 for witness fees. On the taxation the plaintiffs objected to the allowance of such witness fees, on the ground that the affidavits as to such witnesses were insufficient to authorize the clerk to tax such fees. The plaintiffs’ objections were disregarded, and witness fees were allowed. The plaintiffs subsequently moved at a special term for an order to strike from such bill all sums taxed for witness fees, or for such other or further relief as might be just. This motion was denied. From the order denying that motion this appeal was taken.

The court may, as a condition of the postponement of the trial of an action, compel the party seeking such postponement to pay his adversary the fees of his witnesses, and other taxable disbursements already made or incurred, which are rendered ineffectual by such postponement. Code Civil Proc. § 3255. The power of the court to impose such terms as a condition of postponement is not questioned in this case. But the contention here, as it was before the clerk, is that the plaintiffs’ affidavits were not sufficient to authorize the clerk to allow such witness fees. If we give to the defendant’s affidavits the most favorable construction possible, they were at most to the effect that the persons making the same, neither of whom was the defendant, subpoenaed the witnesses therein named at the places mentioned, where they resided, by delivering to each a subpoena ticket, and paying to each a sum stated as and for the traveling fees of such witness in traveling to and returning from the residence of the witness to the place mentioned in the subpoena, and one day’s attendance as such witness; and that the evidence of the witnesses subpoenaed was necessary and material for the defendant on the trial. The defendant’s affidavits utterly failed to state the distance the witnesses severally resided from the place where the trial was to have been had, nor did they state the number of miles that each witness would have had to travel for the purpose of attending such trial. Moreover, the affidavits failed to disclose, except by possible inference, that the witnesses named were subpoenaed for the defendant, and do not disclose that he paid the fees charged, or that he was in any way liable therefor. A charge for the attendance of a witness-cannot be allowed without an affidavit stating the number of days of his actual attendance; and, if traveling fees are charged, the distance for which they are allowed. Code Civil Proc. § 3267. The affidavit of witnesses must state-the residence of each witness, and the distance traveled by each. Wheeler v. Lozee, 12 How. Pr. 446; Hicks v. Brennan, 10 Abb. Pr. 305; Logan v. Thomas 11 How. Pr. 160; Haynes v. Mosher, 15 How. Pr. 216; Taaks v. Schmidt, 25 How. Pr. 340. We think the affidavits used on the taxation were insufficient to justify the clerk in allowing such witness fees.

We do not think the plaintiffs’ contention—that the order to pay the costs of the term did not include the disbursements rendered ineffectual by the-postponement of the trial—can be upheld. It is quite obvious that the intent and purpose of the order was to indemnify the defendant for the disbursements incurred in preparing the case for trial at that term, and we think the order should be held to include the witness fees paid out in preparing the case for trial, provided the sums thus paid were rendered ineffectual by the postponement; but that fact should appear by affidavit. Hor do we think that the plaintiffs’ claim that witness fees can be charged only for such witnesses as-actually attended the court can be sustained. Fees that have been paid a witness on subpoenaing him cannot be recovered back unless the witness, without a reasonable excuse, failed to attend the court in obedience to the subpoena. If the case be settled by the parties after the service of the subpoena, or be put off by the court or the parties, the witness is not bound to refund, though he is then excused from attending. Ford v. Monroe, 6 How. Pr. 204; Moulton v. Townsend, 16 How. Pr. 306; Roth v. Meads, 20 How. Pr. 287. We are of the opinion that the order made on the postponement of the trial— that the plaintiffs pay the defendant his costs of the term—included the disbursements rendered ineffectual by such postponement; that such witness fees as were paid by the defendant, which could not be recovered back, were a part of such disbursements; and that, upon filing a proper affidavit, they should be allowed; but, as the affidavits used on the taxation before the clerk were insufficient to justify such allowance, the order appealed from should be reversed, and an order granted directing a new taxation of defendant’s costs and disbursements before the clerk of Delaware county; and that, upon such retaxation, either party should have leave to furnish such additional affidavits and papers as they deem proper and necessary,

Order of special term reversed, with $10 costs and disbursements on this appeal, and motion for new taxation before the clerk of Delaware county granted, with leave to either party to use, upon such new taxation, such ■further affidavits or papers as they shall deem necessary. All concur.  