
    First Department,
    May, 1906.
    Birdie Stein Sternberger, Respondent, v. Louis Sternberger, Appellant.
    Appeal.— order allowing fixed •sum to pay for printing case on appeal modified to actual cost as settled by trial judge.
    
    Appeal from an. order directing the defendant -to pay tó .the plaintiff’s attorney the sum of §2,000-to print the record, on appeal from the final judgment' in .this action. ’ ■; ¡-.’i .... . . . , -
   Ingra-ham;, J.

.We':think the-.ñp.urt- bejqyr was justified in requiring the defendant to pay the' expense:ef a review-io.f¡"this judgment, upon the plaintiff’s appeal. The order, however, directs the defendant to pay tó the plaintiff’s attorney the sum of §3,000, and any additional sum that may be- necessary to defray the cost of printing such appeal. There does not seem to be a necessity for the immediate payment of the sum of §2,000, before the case is settled and the cost of printing the record is ascertained. It does not seem possible that' it will be necessary to print all of the testimony in the habeas corpus'proceeding, although the same was introduced as evidence upon the trial. Upon the settlement of the case, an abstract of that testimony so as to present all the evidence necessary to submit to the court the question to be presented on the appeal can be prepared, and the trial judge can del ermine upon the settlement of the case how much of the evidence is necessary to present the question on the appeal. (General Rules of Practice, rule 34.) The fact that the cost of printing all the record in the habeas corpus proceeding would be §3,000 does not justify a presumption that such a sum would be necessary to print the case as finally settled by the trial judge. The order should, therefore, he modified by requiring the defendant to pay the counsel fee named, and to pay to the plaintiff or to her attorney the cost of printing the record on appeal when the amount shall be ascertained and the record printed, and as modified, the order should be affirmed, without costs of this appeal. O’Brien, P. J., McLaughlin, Clarke and Houghton, JJ., concurred. Order modified as directed in opinion, and as modified affirmed, without costs.  