
    Sandor Kohn, Appellant, v. The Manhattan Railway Co., Respondent.
    (New York Superior Court—General Term,
    May, 1894.)
    Only necessary disbursements can be taxed by a successful party.
    Witness fees, paid for a term at which the party subpoenaing the witnesses must have known that the case would not be ready for trial, are not necessary disbursements and cannot be taxed.
    The fact that witnesses are not sworn on the trial is presumptive evidence that they were not necessary, and the fees paid to them are Hot taxable without proof as to what was expected to be proved by them, and why they were not called.
    Expenditures made under an act as to procedure which was afterward declared unconstitutional are not necessary disbursements and are not taxable.
    Appeal by the plaintiff from an order of the Special Term directing a retaxation of costs and disallowing certain items taxed by the clerk.
    
      W. W. Badger, for appellant.
    Dmies, Short db Townsend, for respondent.
   McAdam, J.

The order appealed from directed the clerk to retax the plaintiff’s costs, and to strike therefrom an item of twenty-five cents charged for “ satisfaction piece ” and one dollar and fifty cents for sheriff’s term fees. It reduced- the fee for filing note of issue from three dollars and fifty cents to three dollars, and reduced the charge for witnesses’ fees from forty-two dollars to thirteen dollars.

The Code (§ 3256) provides that “ a party tp whom costs are awarded in an action is entitled to include in his bill of costs his necessary disbursements as follows: The legal fees of witnesses and of referees and other officers,” etc. Disbursements incurred are not always allowable against the opposite party, for the Code limits those taxable to necessary disbursements, and the word £< necessary ” has given rise to a number of judicial opinions construing its meaning.

It appears that the cause was on the equity calendar of the October term, at which the action was first called for trial; that the proper parties plaintiff were not then before the court, and for this reason the cause went over the term. The court disallowed the fees for witnesses summoned for that term upon the ground that the fees paid were not necessary disbursements. In Delcomyn v. Chamberlain, 48 How. Pr. 411, the court held that a necessary disbursement is such as a party is compelled to make or incur, incident to the regular proceedings in the action, and to bring it to tidal according to the course and practice of the court.” The plaintiff was not compelled to summon witnesses at a term for which he should have known that his cause was not ready for trial; and for this reason the ruling in regard to the witnesses’ fees for October was properly made. See, also, Pike v. Nash, 16 How. Pr. 53.

In the plaintiff’s bill of costs twenty-two witnesses were named, and twenty-one charged for. At the term when the cause was tried only eight witnesses were called. In Haynes v. Mosher, 15 How. Pr. 216, cited with approval in Mark v. Buffalo, 87 N. Y. 189, the court said: It was shown in this case in opposition to the. allowance for witnesses’ fees that a large number of the witnesses were not sworn upon the trial. This fact furnishes presumptive evidence -that the witnesses were not necessary. Before the defendant could be allowed for the travel and attendance of such witnesses, it was incumbent on him to overcome this presumption, by showing how it happened, if they were material and necessary witnesses for him, that he was able to dispense with their testimony on the trial.”

In Robitzek v. Hect, 3 Civ. Proc. Rep. 156, this court held that, where it appeared that witnesses were not called at the trial, proof should have been presented of what was expected to be proved by them, and why they were not called. No such proof was furnished and the ruling made below was correct.

It also appears that the cause was in 1891 transferred from the equity to the jury calendar on defendant’s motion under the amendment to the Code passed in that year (Laws 1891, chap. 208), whereby the calendar fee was increased by fifty cents, and three sheriff’s term fees had accrued. On the rendition of the judgment by the Court of Appeals in the Shepard case (131 N. Y. 215), holding that the act under which the transfer was made was unconstitutional, the cause was returned to the equity calendar, upon which it was tried. It is claimed that these expenditures, having been made necessary by the legislative act in question, were necessary disbursements, because the plaintiff was obliged to pay them under color of legislative authority. But the statute was declared unconstitutional. It is, therefore, as if it had never been. Rights cannot be built up under it; contracts which depend upon it for their consideration are void, and it constitutes no protection to any one who has acted under it. Cooley’s Const. Lim. (2d ed.) 188. There is, therefore, no warrant under which moneys paid under such an act by one party without the request of the other, nor for his benefit, can be recovered from him. A void act creates neither duties nor obligations. It is familiar law that a void thing is no thing, and that there is no remedy for a mistake of law. Ignorantia juris non exomat. It follows that the order appealed from must be affirmed, with costs,

Sedgwick, Ch. J., and Freedman, J., concur.

Order affirmed, with costs.  