
    In re TODD.
    (District Court, S. D. New York.
    May 28, 1901.)
    Bankruptcy- — Collateral Reference — Costs—Stenographer's Fees.
    Where a controversy between a trustee and a third person respecting the right to certain property was submitted to a referee, and the claimant was unsuccessful, he may properly be taxed with the costs of the reference, including a reasonable fee for the referee, a docket foe for the trustee’s attorney, and the fee of a stenographer employed on application of the trustee, under Bankr. Act 1898, § 38a, cl. 5, not to exceed, however, 10 cents per folio for reporting and transcribing his notes, in the absence of stipulation.
    In Bankruptcy. On application for taxation of costs of a reference.
    
      Clarence E. Freeman, for trustee.
    Schuyler C. Carlton, for claimant.
   BROWN, District Judge.

A dispute having arisen between the trustee of the above-named bankrupt and a third person concerning the possession and ownership of the contents of a safe-deposit box, the referee in charge of the case upon a petition filed with him by the trustee, made order that the claimant attend before him to be heard in reference to the right, of property and possession' of the contents of the box. The claimant attended by himself and counsel, submitted to the jurisdiction, asked and obtained leave to file proofs and examine witnesses in his own behalf and was heard. After a. somewhat lengthy hearing, the referee found in favor of the trustee and entered an order to that effect and directed that the claimant pay the trustee the costs and disbursements of the proceedings to be taxed by the clerk of this court. Bequest was addressed to the referee to specify any items taxable, to which no answer has been received, but a bill has been presented by the trustee’s attorney with items for witnesses, a docket fee of $20, Stenographer’s bill for minutes $70.80, and referee’s per diem charges for examining testimony and preparing his report and the decree.

The rule established by the late Mr. Justice Blatcliford in this court, and ever Since followed in regard to stenographers’ fees was that when not provided for by law, they could not be taxed in any cause, except upon a written stipulation between the attorneys. Stích. has been the uniform practice in this court, the attorneys usually dividing and paying the expense of taking and transcribing the stenographer’s notes and taxing in accordance with the stipulation in favor of the successful party the sums paid by him for his share;of the notes.

■The bankruptcy act of 1898 contains but a single provision authorizing the employment or payment of stenographers, namely, section 88a (5) which provides that upon the application of the trustee, the referee may authorize the employment of stenographers at the expense of the estate at a compensation not to exceed 10 cents per folio, for reporting and transcribing the proceeding.

The authority thus given to the referee, it will be noticed, can only be exercised upon the application of the trustee; the expense is in the first instance a charge against the estate, and it is not to exceed 10 cents per folio.

The above-express provision and the absence of any other, prevent imposing any further charge for stenographers’ fees or the taxation of'any other, except in pursuance of some stipulation made by the parties to: the cause. : '

' ' In the present ease there was no such stipulation; but as the stenographer’s notes were rendered desirable and the application therefor was in consequence of the claimant’s contesting demands and the controversy'has-beenadjudged against the latter, it is proper that this necessary expense to the estate should be taxed against the-claimant;-and., it .is-therefore allowed to the extent of 10 cents per folio, which is one-half of the bill rendered. There is no authority for taxing for an additional copy of the testimony for the convenience of the court, whether one or two copies have been made.

No mileage can be charged for the travel of witnesses, as there is no affidavit showing their residence or place of business, or the distance necessarily traveled.

As the application in the present case was outside of the ordinary scope of the referee’s duties, a reasonable compensation should be allowed him, according to the analogies in federal practice. See Hathaway v. Roach, Fed. Cas. No. 6,213, 2 Woodb. & M. 63,1 Blatchf. 652; 2 Supp. Rev. St. p. 487, § 21. The payments to him as for “incidental expenses” under general order 26 (32 C. C. A. xxii, 89 Fed. xi.), it is understood were made from time to time as the reference proceeded. In the absence of any further evidence as to his subsequent examination of the testimony and the making up of his report and judging from the testimony and the nature of the report, I allow the taxation of $50 in full for the referee’s fees, and also a docket fee of $20 to the successful attorney.  