
    GALLAGHER v. BAIRD.
    (Supreme Court, Appellate Division, First Department.
    April 4, 1901.)
    Costs—Taxation op Stenographer’s Fees.
    Plaintiff, having become liable for stenographer’s fees before a referee, move'cl to have them taxed as a disbursement. Defendant objecting, one-half was taxed by consent. Defendant afterwards requested plaintiff to loan him a copy of the minutes to make up the proposed case on. appeal. Plaintiff agreed to this on defendant’s paying the fees taxed.. Held, that plaintiff’s liability for the minutes was incurred in connection with the trial, and not with the preparation of the appeal, and he was not-entitled, after affirmance, to have the other half included in the costs-taxed, though plaintiff had stated, in giving the copy to defendant, that such action was without prejudice to any right he might have to tax the-other half should he succeed on appeal.
    Appeal from special term, New York county.
    Action by Patrick Gallagher against Matthew Baird. From an order denying defendant’s motion for review of taxation of bill of costs and the disallowance of a certain amount for stenographic minutes (68 N. Y. Supp. 659), defendant appeals.
    Reversed.
    Argued before VAN BRUNT, ,P. J., and RUMSEY, PATTERSON,. O’BRIEN, and INGRAHAM, JJ.
    Joseph Fettretch, for appellant.
    Leslie Richard Palmer, for respondent.
   O’BRIEN, J.

The issues herein were sent to a referee, who, upom the refusal of the defendant to stipulate that a stenographer should, take the minutes, himself employed one, and the bill for such work, amounted to $1,099. Copies of the minutes were used by both, parties during the reference, and returned to the referee, who, having; ordered judgment in plaintiff’s favor, gave the copies to him. Upon request of the stenographer for payment of the entire bill, and to relieve the referee, who had become responsible for the stenographer’s fees, the counsel for the plaintiff agreed to become liable for them, and thereafter endeavored to have them taxed as a disbursement. Under the objection of the counsel for the defendant, the full amount was not allowed, but only one-half of the bill, which, by consent, was taxed. Thereafter, however, the defendant’s counsel requested the plaintiff to loan him a copy of the minutes to make up the proposed case on appeal. This the plaintiff at first refused to do, and finally it was agreed that the defendant should receive a copy upon paying the amount of the stenographer’s fees as taxed, and thereupon the defendant paid the one-half, and had that sum taken from the judgment.-

The situation, then, was that each party had a copy of the minutes, which he could use, one for preparing the case, and the other for adding and formulating the proposed amendments on appeal. The judgment subsequently was affirmed (66 if. Y. Supp. 759), and thereafter the plaintiff moved and succeeded in having the other half of the stenographer’s fees included in the costs as taxed after such affirmance. In support.of the right to tax this disbursement, reliance was placed upon the case of Ridabock v. Railway Co., 8 App. Div. 309, 40 N. Y. Supp. 938, wherein it was held that “the rule in this department is that the amount paid for a copy of the stenographer’s minutes obtained for the purpose of properly preparing amendments to the case on appeal is a taxable disbursement”; and it was therein further said: “The cases contra deal mainly with minutes obtained for use upon the trial.” That case is distinguishable from the fact that it here appears that the minutes were not obtained for the purpose of preparing amendments, but both copies had been obtained for use upon the trial. The liability for the minutes and the subsequent expenditures were in connection with the trial, and thereafter, upon the entry of judgment, the plaintiff sought to tax the whole bill, and have it included in the judgment roll, to which, as we have said, objection was successfully made by the defendant. We are not now concerned with the question whether such objection made to the taxation was good or not; the fact appearing that it was by the consent, which was subsequently given by the defendant’s attorney, that one-half was taxed, and that amount thereafter paid by the defendant.

The resulting sitfiation was that each side had paid half the expense, and each had a copy of the minutes; and these were used, one by the defendant in making the case, and the other by the plaintiff in formulating proposed amendments. It therefore seems to us illogical to conclude that minutes procured for use on the trial were obtained, and the expense necessarily incurred, by plaintiff in preparing amendments on appeal. This, we think, would have been the conclusion of the learned judge at special term, were it not for the error into which he inadvertently fell in giving undue force to a statement contained in the letter which was sent by the plaintiff’s attorney with the copy of the minutes when delivered to the defendant. The judge considered this to be, in effect, a stipulation or understanding that the payment made by the defendant’s counsel was “without prejudice to the right of the plaintiff to tax the other half” should the plaintiff succeed on appeal. The letter, however, reads: “Of course, this is without prejudice to any right we may have to tax the other one-half of the costs of these minutes should we succeed upon the appeal.” We do not think that when the defendant accepted the copy of the minutes, and paid therefor, even though accompanied by a letter couched in the language quoted, he thereby obligated himself to pay the other half in the event that the judgment was affirmed on appeal. There was clearly no stipulation on the subject, each party1 standing on his strict legal rights; and as it was made to appear, after the affirmance of the judgment, that the minutes used were not obtained nor the expense necessarily incurred in proposing amendments to the case on appeal, the plaintiff was not entitled to tax this item. It having been allowed, the defendant was entitled to have it retaxed.

The order accordingly should be reversed, with $10 costs and disbursements, and the motion for the retaxation granted, with $10 costs. All concur.  