
    R. M. GILMOUR MFG. CO. v. STETTLER et al.
    (City Court of New York, Special Term.
    March 11, 1908.)
    1. Costs—Successive Trials—Trial Fee.
    Though a trial is abortive, plaintiff, on succeeding on a subsequent trial, is entitled to a trial fee of $30 for eaéh trial.
    [Ed. Note.—For cases in point, see Cent. Dig. vol. 13, Costs, § 614.]
    
      2. Sauk—After Granting of and Before New Trial.
    Under the express provisions of Code Civ. Proc. § 3251, subd. 3, where a new trial is had, $25 costs may be awarded to either party for all proceedings after the granting of and before the new trial.
    [Ed. Note.—For cases in point, see Cent. Dig. vol. 13, Costs, §§ 1011, 1012.]
    3. Same—Stenographer’s Minutes for Use on Subsequent Trial.
    The expense of procuring stenographer’s minutes of a trial for use on a subsequent trial is not properly taxable as a disbursement.
    Action by the R. M. Gilmour Manufacturing Company against Henry I. Stettler and others. Cross-motions to review taxation of' costs. Clerk directed to adjust plaintiff’s costs in accordance with opinión..
    Lyon & Smith, for the motion.
    H. C. Mitchell, opposed.
   FINELITE, J.

These are cross-motions to review the taxation- of costs herein. There were two trials had. The first trial was on March 16, 1897, when the verdict of the jury in favor of the plaintiff was set aside and a new trial ordered. The cause was again tried on February 24, 1908, after a lapse of 11 years, and again resulted in a verdict in favor of the plaintiff. The plaintiff asked in his bill of costs for two trial fees, which the clerk refused to allow, taxing only one trial fee of $30. The clerk, under exception by the defendant, allowed $25 costs-for proceedings before and after granting new trial, and allowed and taxed as a disbursement of the plaintiff $35.40 for stenographer’s-minutes for use upon the second trial, on account of death of witness,, to which the defendant excepted.

The plaintiff, being the successful party, is entitled to a trial fee of $30 for each trial had, even though the prior trial was abortive. Hudson v. Erie R. R., 57 App. Div. 98, 68 N. Y. Supp. 28. The item of $25 for proceedings before and after granting new trial was properly-allowed. Subdivision 3, § 3251, Code Civ. Proc.

The clerk allowed $35.40 paid by plaintiff for stenographer’s minutes.. The lapse of time between the two trials of this action was nearly 11 years, and during that time plaintiff’s counsel, having charge of the cause, died-, as did also one of the plaintiff’s and one of the defendant’s-witnesses. Another of the plaintiff’s witnesses was without the state of New York. Another of the defendant’s witnesses could not be-found. It was stipulated between the respective attorneys that the stenographer’s minutes of the testimony of said witnesses on the first trial could be. read in evidence at the second trial. This item should-have been disallowed. There are decisions to the effect that the expense of procuring the stenographer’s minutes of a trial for use upon a. subsequent trial may properly be taxed as a disbursement, but the better opinion would seem to the contrary. Hamilton v. Butler, 30 How. Prac. 36; Pfandler Barm Extracting Co. v. Pfandler, 39 Hun, 191; Pfandler Co. v. Sargent, 43 Hun, 154; Whitney v. Roe, 75 Hun, 508, 27 N. Y. Supp. 511; Shaver v. Eldred, 86 Hun, 51, 33 N. Y. Supp. 158; Equitable Life Assur. Soc. v. Hughes, 125 N. Y. 106, 111, 26 N. E. 1, 11 L. R. A. 280. In 1892, by chapter 185, p. 420, of the Laws of that year, the Legislature amended section 3256 of the Code of Civil Procedure, so as to make the expense of procuring stenographers’ minutes a taxable disbursement; but the law was repealed before it took effect by chapter 592, p. 1137, of the Laws of 1892.

The clerk is directed to readjust the plaintiff’s costs in accordance with the foregoing decision, without costs on these cross-motions to either party.  