
    John B. Smith, Plaintiff, v. Edward F. Hutton, George A. Ellis, Jr., William D. Hutton and Franklin L. Hutton, as Copartners Doing Business Under the Firm Name and Style of E. F. Hutton & Company, Defendants.
    (Supreme Court, New York Special Term,
    June, 1909.)
    Costs — Amount — Fees of witnesses, officers and jurors — Witness fees — Mileage or travel fees — From place of business instead of residence.
    Where a witness, though residing forty-five miles from the courthouse in the county of New York, is subpoenaed at his business office near the said court-house, the party who subpoenaed him is not entitled to tax in his bill of costs a mileage fee from the domicile of the witness.
    Motion for a retaxation of plaintiff’s costs.
    Joline, Larkin & Rathbone (Albert Stickney, of counsel), for motion.
    William F. S. Hart, opposed.
   Giegerich, J.

One of the witnesses subpeenaed to attend upon the two trials of the action in this county has an office for the transaction of business within this county and near the court-house, at which place he was served with the successive subpoenas. Such witness resides, however, in Bay-Shore, Long Island, a distance of forty-five miles from the court-house in this county where the trials were had. The question is- whether the two items of mileage of three dollars and sixty cents each were properly taxable. The clerk disallowed such items, and this motion for a retaxation has been made by the plaintiff. The question depends upon the meaning of section 3318 of the Code of Civil Procedure, which provides that a witness, in addition to his fee of fifty cents for each day’s attendance, is also entitled, “ if he resides more than three miles from the place of attendance, to eight cents for each mile, going to the place of attendance.” The question depends of course upon the meaning to be given to the word “ resides.” There seem to be no recent cases upon the point, but in Clarks v. Staring, 4 How. Pr. 243, which was decided before the Code of Civil Procedure went into effect, but upon provisions of the ¡Revised Statutes sufficiently similar to make it useful as an authority, the court held that, where the witness was-subpoenaed at his temporary residence in Hew York city to attend a trial at ¡Rome, in Oneida county, his permanent residence .being in Whites-town, in that county, he was entitled to his traveling fees from his temporary residence in Hew York city, instead of from his permanent residence in the county where the trial was had. The court did not seek to find enlightenment in the definitions of the meaning of the word “ residence ” under the Election Law or the Insolvent Law, or any other law, but remarked that the meaning of the words used in the statute depends upon the subject-matter of the enactment and upon the object and intent of its framers, and that the object of the Legislature in passing the act under consideration was to compensate a witness for traveling to and from the court which he was obliged by the process of the court to attend. With that view I agree, and think that, where witnesses have a regular place of business in the county of Hew York, but their domiciliary residence is in more or less distant suburbs, and daily come to this county and are subpoenaed here, they are not entitled to receive, and the party who subpoenaed them is not entitled to tax a mileage fee from the place of their domicile. In Mitchell v. Westervelt, 6 How. Pr. 265, the authority of Clarks v. Staring was followed. The case of Pike v. Hash, 16 How. Pr. 53, relied upon by the plaintiff, is not in conflict with the views above expressed. In that case a witness residing in Brooklyn was subpoenaed while in Schuylerville, Saratoga county, to attend a trial at Fort Edward, in Washington county. The witness refused to attend, unless he was paid the amount of his travel fees from Brooklyn to Fort Edward, which amount the plaintiff paid him and which amount the court held was properly taxable. That case is distinguishable from the present one, in that there it did not appear for how long a time the witness was to be in Schuylerville. Still less did it appear that he had an office there for the transaction of business, and was habitually there each day. In cases like the one' under consideration, I am satisfied that the true intent of the Legislature will be effectuated by holding that the witness is entitled only to a traveling fee from his place of business within the county. Especially should he be thus limited in this case, because here it is undisputed that he came daily to his office for the purpose of attending to his business on the very days for which travel fees are sought to be charged. Hnder such circumstances, the statutory expression going to the place of attendance ” has no application to the distance from his residence to his office. As to that distance, he was going to his office and not to the place of attendance.

Motion denied, with ten dollars costs.  