
    Byam K. Stevens, Resp’t, v. The New York Elevated Railway Co. et al., App'lts.
    
      (New York Superior Court, General Term,
    
    
      Filed May 5, 1890.)
    
    1. Costs—Stenographer’s minutes.
    The expense incurred for procuring a copy of the stenographer’s minutes is properly allowed as a necessary and reasonable disbursement on appeal where it is shown that such copy was necessary to enable the respondent to propose amendments to the proposed case and make the proper reference to such minutes as required by rule 9.
    2. Same—Retaxation—Waiver.
    The taking of an appeal to the court of appeals is a waiver of the right to move for a retaxation of costs on appeal to general term.
    Appeal from an order of the special term denying defendants’ motion for a retaxation of costs.
    
      Davies & Eapallo, for app’lts; 6r. Willett Van Nest, for resp’t.
   Per, Curiam.

The expense incurred for procuring a copy of the stenographer’s minutes was allowed by the clerk as a reasonable and necessary disbursement on appeal upon proof by affidavit that such copy was necessary to enable the respondent to propose amendments to appellants’ proposed case and to make at the end of each amendment the proper reference to the stenographer’s minutes as required by rule 9 of this court. To such a state of facts the opinion expressed in Pfaudler v. Sargent, 43 Hun, 154; 5 N. Y. State Rep., 413, to the effect that the fees of a stenographer for a copy of his minutes are not taxable even when procured for the purpose of enabling a party to propose amendments to a case, does not strictly apply. Moreover, the cases cited in support of said opinion are all cases where the fees were sought to be taxed on the entry of the original judgment and not on appeal. In addition it was shown in the case at bar in opposition to the motion for a retaxation that the defendants had appealed to the court of appeals. This constituted, even under the decision of Pfaudler v. Sargent, a waiver of the right to move for a retaxation.

binder all the circumstances the learned judge below was right, in denying defendants' motion for a retaxation, and the order appealed from should be affirmed, with ten dollars costs and disbursements.

Sedgwick, Oh. J., Freedman and O’G-orman, JJ., concur.  