
    Esther Simon, Plaintiff, v. L. Ingber, Known as Leopold Ingber, et al., Defendants.
    City Court of the City of New York, Special Term, Bronx County,
    November 23, 1953.
    
      
      Edward E. Hoenig for defendants.
    
      Edward Scherer for plaintiff.
   Evans, J.

Motion for a reargument granted. I excluded from the bill of costs the sum of $159 paid by defendants to the Warden of Dannemora Prison for bringing Leopold Ingber, a prisoner, to testify on behalf of defendants in a case in which the prisoner and his wife were codefendants. The ground for exclusion of this sum ivas that defendants are not entitled to witness fees and expenses when one of them comes to court to testify in his own behalf, or in behalf of the defendants jointly (Civ. Prac. Act, § 1541).

It is now said that Leopold Ingber did not come to court to testify in his own behalf, but in behalf of his wife. The cause of action was upon promissory notes made by the prisoner and his wife. It was a joint and several liability. The defense was a joint defense of usury in one answer, appearing by the same attorney. The application to bring the prisoner as a witness (under Civ. Prac. Act, § 415) was made by the other defendant, not to bring him as a witness in her behalf alone, but in behalf of defendants. The order directing the warden of the prison to bring the prisoner down was not as a witness in behalf of the other defendant, but as a witness in behalf of the said defendants ”. The prisoner was thus a witness not solely for his codefendant, but a witness in his own behalf, and a witness in behalf of the joint interests of defendants.

I think, therefore, that the defendants cannot tax as costs the expenses of one defendant coming to court to testify. Original disposition adhered to.  