
    FLOOD v. MOORE.
    
      N. Y. Supreme Court, Third Department; Special Term,
    
    
      February, 1877.
    Costs.—Disbursements.
    The expense of a copy of the stenographer’s minutes of a former trial, obtained for use on a second trial of the same action, is taxable as a disbursement as part of the costs of the prevailing party.
    Motion by plaintiff for adjustment of costs.
    This was an action by Catharine Flood, as administratrix, against David Moore.
    On the first trial of the action the jury did not agree. The attorneys for plaintiff procured from the stenographer a copy of his minutes of the evidence to use on the second trial, and it was so used; and the attorneys showed by affidavit that it was procured in good faith for that purpose.
    On the second trial, the plaintiff recovered judgment, and the charge paid the stenographer was included in the plaintiff’s costs. This item w;as disallowed on the adjustment of costs by the clerk, and the plaintiff appealed.
    
      Amasa J. Parker, Jr., for motion.
    
      Grenville Tremain, opposed.
   Westbrook, J.

I was at first inclined to hold that the copy notes should not be allowed as a disbursement. On further reflection, however, I think they should be allowed. Suppose witnesses had been subpoenaed to prove what certain other witnesses swore to on a former trial, and the attorney on taxation testified that they were subpoenaed in good faith because he believed they might be necessary, would they not have been allowed % This motion turns on the same ground.

In anticipation of what might occur on a second trial, the notes were procured. The attorney testifies to the good faith of the procurement, and I think the disbursement is fairly within the letter of the Code.

No costs on motion.  