
    JOHN G. HOFFMAN, Respondent, v. THE N. Y., LAKE ERIE & WESTERN R. R. Co., Appellant.
    
      Decided March 3, 1884.
    
      Witness fees—mileage and per diem allowance.
    
    Before Sedgwick, Ch. J., and Truax, J.
    Appeal from an order directing a new taxation of costs by the clerk.
    The case was on the day calendar October 1, when a request was made to the court to fix a day for the trial which would relieve the witnesses from unnecessary attendance. The court denied the application, and stated that the witnesses must be in attendance. They were accordingly in court on October 2, on which day the court adjourned, on account of the sickness of the trial judge, to October 4. On October 4 the case was called. The trial judge would not allow the defendant’s default to be taken on account of the absence of the witnesses, but required the defendant to be ready the next day, October 5. The witnesses weretin court on that day, having come a second time to the city. The case was not reached October 5, and the witnesses went home to• spend Sunday with their families. They returned on October 8, and remained in court that day, and also on October 9th, 10th, 11th and 12tli, when the trial took place, and the complaint was dismissed on the plaintiff’s own testimony. The witnesses were paid for their attendance. On the relaxation the court deducted from the amount of the bill, as taxed by the clerk, the sum of $169.74. The court ordered “ witness fees and mileage for one day’s attendance only are allowed for each witness for whom, witness fees and mileage were allowed by said clerk.”
    Defendant supcenaed Orange Sackett three times from Avon, New York, 366 miles ;■ Daniel L. Krum, twice from Elmira, 275 miles; Lewis Tripp, three times from Avon, 366 miles ; Amasa W. DeWitt, three times from Avon, 366 miles ; Dr. William Nesbitt, twice from Avon, 366 miles, and in addition paid them the witnesses’ fees for their actual attendance in court.
    
      Abbett & Fuller for appellant.
    It has been held that where on Saturday night witnesses necessarily went home and returned on Monday morning they were entitled to two travel fees (Muscott v. Runge, 27 How. 85). It has also been held that where the cause was set down for a later day in the circuit, and the witnesses went home and returned, they were entitled to two travel fees (Miller v. Huntington, 1 How. 218 ; Moulton v. Townsend, 16 ld. 306). When the court adjourned from Tuesday to Thursday on account of the sickness of Justice Sedgwick, practically the case was set down for a later day in the circuit, and therefore the witnesses had a right to return home and receive the other mileage. Although the clerk struck off the last mileage because the witnesses returned home to remain over Sunday, yet, under the case above cited (27 How. 85), they were entitled to that fee.
    
      Edward S. Hatch, for respondent.
    The clerk should not have allowed more than one traveling fee for any of the witnesses in this case. This case appeared on the day calendar for the October term ; was called from day to day, and was tried before the end thereof. It was the duty of the witnesses to have remained during the term, and they might have been allowed their per dAerri amount for such attendance, but they are entitled to one traveling fee only (Muscott v. Runge, 27 How. 85, 90 ; Wheeler v. Ruckman, 5 Robt. 702 ; Courtney v. Baker, 3 Den. 27 ; Curtis v. Dutton, 4 Sandf. 719).
   Per Curiam.

The appellant is entitled to tax mileage for but one attendance. The witnesses could have compelled the payment of but one fee for mileage. Any payment in excess of one was a gratuity from the defendant to the witness and cannot be taxed.

The appellant is entitled to tax a fee of fifty cents for each day the witnesses were in attendance. This number of days appears to be correctly stated in the bill of costs.

The order appealed is modified so as to allow the appellant witnesses’ fees for each day’s attendance, and as modified is affirmed without costs.  