
    
      Long Island Contracting and Supply Company, Appellant, v. The City of New York, Respondent.
    Second Department,
    December 30, 1910.
    Costs — disbursements — stenographic minutes.
    A defendant is entitled to tax the cost of a copy of stenographic minutes of a trial when it was necessary for him to use 'Lem in the preparation of amendments to the case on appeal. But a defendant.will not be allowed to tax the cost of said.minutes when it appears by the uncontroverted affidavit of his opponent that the defendant ordered and received a copy of the minutes from day to day during the trial, even though the defendant’s affidavit states that the minutes were necessarily obtained and actually used in preparing amendments to the proposed cáse on appeal. ■
    
      It seems, however, that minutes may be ordered at the trial and received for the preparation of amendments to a case on appeal.
    Appeal by the plaintiff, the Long Island Contracting and Supply Company, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Queens on the 15th day of April, 1910.
    
      James F. McKinney [Edward M. Grout and Paul Grout with him on the brief], for the appellant.
    
      ■Clarence L. Barber \Theodore Connoly and Archibald R. Watson with him on the brief], for the respondent.
   Jenks, J.:

This is an appeal from an order of the Special Term that re taxes the defendant’s costs by adding the sum paid by the respondent for. the stenographic minutes of the trial. The taxation of such an item is justified only by the necessity for the use of the minutes in the preparation of amendments to a case on appeal. (Ridabock v. Metropolitan Elevated R. Co., 8 App. Div. 309.) The affidavit of the defendant is that the copy of the minutes “ was necessarily obtained and actually used in preparing amendments to plaintiff’s proposed case on appeal.” In the absence of any other copy, of Course before this copy could have been used '■ it was necessarily obtained. But the question is whether it was necessarily obtained in the sense that when procured the minutes were obtained for the purpose of preparing such amendments. The affidavit of one of the attorneys for the opposite party shows that ‘of his own knowledge the minutes of the trial were ordered and received by the defendant from day to day during the trial. This is not disputed. In Gallagher y. Baird (60 App. Div. 29) the court say that it seems illogical that minutes procured for use on the trial were obtained, and the expense necessarily incurred by the plaintiff in preparing amendments on appeal. And thus it seems to us. Such an affidavit as was presented in this case is radically different from that considered by the court in Pratt v. Clark (124 App. Div. 248). Of course it may be made to appear that, although minutes are ordered during the trial, they were so ordered and received with an eye to the preparation of amendments to a case on appeal, if that shall be the event, but ,we think that the affidavit in this case was not sufficient to so satisfy the court.

The decisions upon this question have not been harmonious. Milliman on the Law of Costs (§ 414c), citing authorities, says: “ Where a party obtains a copy of the stenographer’s minutes to prepare a case and exceptions, the expense of such a copy is properly taxed by him as a disbursement. The amount paid by the successful party for a copy of the stenographer’s minutes is a proper disbursement, when it appears that it was necessary for him to procure such copy to enable him to prepare amendments to his opponent’s case, as required by Rule 32 of the General Rules of Practice. Under the Code of Procedure such a disbursement was taxable. There is a class of earlier cases which hold that, under no circumstances, can stenographers’ fees be a taxable disbursement. But this class of eases have now very little authority in the face of the recent decisions.” We cannot conclude that Pfaudler Co. v. Sargent (43 Hun, 154), cited by the appellant, is decisive of this question, although it was affirmed by the Court of Appeals (110 H. Y. 657). As pointed out by the court in Ridabock's Case {supra), the expression of the eminent judge which seems to make for the appellant was not necessary to the decision, and we cannot assume that the affirmance of the judgment was express approval of that particular utterance. As was said in Starkweather v. Sundstrom (113 App. Div. 401), the right to tax the cost of procuring 'such minutes for the purpose of preparing amendments has been recognized in two of the departments of this court, and we think that this department should be in accord, not alone for the sake of uniformity as to a matter of practice, but because the reason for the rule commends itself. The proposition of Starkweather v. Sundstrom {supra) that the opposite party could save himself from such a charge by tendering his copy of the minutes for use by his adversary, could not apply to a case like the one at bar, as that party, knowing that his adversary had received the minutes ordered during the trial, might properly surmise that he would use them.

The order is reversed, with ten dollars costs and disbursements.

Hirschberg, P. J., Woodward, Thomas and Carr, JJ., concurred,

Order reversed, with ten dollars costs and disbursements, and motion denied, with costs.-  