
    Elijah Booth, Plaintiff, v. H. S. Kerbaugh, Inc., Defendant.
    (Supreme Court,
    Cattaraugus Special Term,
    August, 1913.)
    Costs — retaxation of — agreement by'attorneys as to disbursements and expenses — when plaintiff not precluded from taxing trial fee when mileage fee of witnesses disallowed.
    Where on a motion for retaxation of costs it appears by affidavit that an allowance of $100 to plaintiff was made as a condition of granting defendant’s motion to postpone the trial for the payment of the witness fees and other expenses of the trial incurred by plaintiff to that time, and it was agreed by the attorneys for the respective parties, without taxation of the items, that plaintiff’s disbursements and expenses would aggregate about that sum, which they did, plaintiff is not precluded from taxing a trial fee.
    Where, after the trial was begun and on a Friday afternoon, the court adjourned until the following Monday at 1 P. M., and material witnesses for plaintiff who were under subpoena and in attendance when the adjournment was taken went to their homes about fifty miles from the court-house and returned to attend court at the adjourned hour, the mileage fees of said witnesses for returning to their homes at the adjournment and for coming back should be disallowed.
    Motion at adjourned Cattaraugus Special Term for retaxation of costs.
    George E. Spring, for plaintiff.
    Allen J. Hastings, for defendant.
   Laughlin, J.

The court is required by this motion to review the rulings of the county clerk in disallowing objections duly interposed by the defendant to the taxation by plaintiff, on entering judgment herein, of a trial fee for the March term, 1913, and five items of disbursements aggregating eighteen dollars and twenty-four cents, shown in the usual form to have been paid or incurred to certain witnesses for mileage for returning to their respective residences pending the trial of the action on the usual adjournment of court over Sunday, and for returning to attend court on Monday.

The right of the plaintiff to tax the trial fee depends upon a question of fact. Taxation of that item is contested only on the ground, that it was embraced in an allowance of $100 made by the trial court to the plaintiff as a condition of granting the postponement of the trial on the application of the dedefendant. It appears by affidavit that such allowance was made for the purpose of paying the witness fees and other expenses of the trial incurred by the plaintiff at that time; and that it was agreed by the attorneys for the respective parties, without taxation of the items, that the plaintiff’s disbursements and expenses would aggregate about that sum. It further appears by affidavit that such disbursements and expenses did in fact amount to that sum. That allowance, therefore, affords no basis for precluding the plaintiff from taxing the trial fee.

It appears that after the trial of the action was begun, and on a Friday afternoon, the court adjourned until the following Monday at one o’clock in the afternoon, and that the justice presiding at the term, the attorneys, jurors and the witnesses all left the county seat during the interim; and five material witnesses for the plaintiff, who had been subpoenaed and were in attendance and resided from 43 to 48 miles from the court house, went home and returned to attend court at the adjourned hour. It is conceded on the part of the defendant that the plaintiff was entitled to tax five dollars for the per diem fees of these witnesses for Saturday and Sunday, and its counsel argues that there is no authority for taxing more; but counsel for the plaintiff contends that his client was entitled to tax mileage for these witnesses, in effect, as if they had been duly subpoenaed anew, and he cites in support of his contention Muscott v. Runge, 27 How. Pr. 92; Moulton v. Townsend, 16 id. 306; Miller v. Huntington, 1 id. 218, and an unreported decision in which no opinion was written at trial term Supreme Court, Cattaraugus county, in the case of Kales v. Hogg. The point presented is both interesting and important. It would seem that the ruling made in Kales v. Hogg, sustaining the right to tax mileage in such ca.se, was a mere expression from the bench of the opinion of the justice presiding without specially examining the question; and it appears by affidavit that the court remarked on so ruling, that as jurors were entitled to such mileage the same rule should apply to witnesses. In the ease of jurors, hoAvever, it is expressly provided by section 3314 of the Code of Civil Procedure that unless a per diem allowance is made to them hy the board of supervisors, in counties other than the county of New York, they shall receive mileage at the rate of five cents per mile for each mile necessarily travelled in going to and returning from the term, and that each juror is entitled to such mileage ‘ ‘ for actual travel once in each calendar week during the term,” with certain exceptions relating to three other counties. There is, however, no such provision with respect to witnesses, and, therefore, with all due deference to the view of the learned justice who presided in Kales v. Hogg, the ruling in that case cannot be regarded as a controlling precedent or one which should be followed, even if deemed erroneous by a court of co-ordinate jurisdiction.

The fees to which the witnesses were entitled are prescribed in section 331.8 of the Code of Civil Procedure as follows: “A witness in an action or a special proceeding, attending before a court of record, or a judge thereof, is entitled, except where another fee is specially prescribed by law, to fifty cents for each day’s attendance; and, if he resides more than three miles from the place of attendance, to eight cents for each mile, going to the place of attendance.” Those statutory provisions have remained substantially the same since the enactment of chapter 386 of the Laws of 1840, from section 8 of which they were taken. In codifying the statute its phraseology, which prescribed half the mileage for going and the other half for returning, was changed, but the revisers’ notes do not indicate that they intended to change, the effect of the statute. See Throop’s Annotated Code Civ. Pro. 1886, § 3318. We may take judicial notice that in those early days and until quite recently in nearly every rural county in the state, court was ordinarly held continuously from the commencement until the end of the.term including Saturdays, and jurors, witnesses' and others attending court usually remained at the county seat oyer Sunday adjournments, and were often obliged to do so. The phraseology of the statute contemplated the payment of mileage for one trip only to each witness, and it is now expressly given as traveling fees for going to the court and not, as in the case of jurors by the present statute, for going to and returning from the court. It is manifest, therefore, that the question hinges on whether it became necessary to subpoena the witnesses de novo for Monday; for if it did not, and if their attendance on that day could have been lawfully required by paying them, before they were excused on Friday, their per diem fees for Saturday, Sunday and Monday, then the defeated party cannot be charged with additional mileage unnecessarily paid. It seems, on the bare statement of the proposition, reasonable that witnesses should be reimbursed for the expenses of returning to their homes during the ordinary recess of the court over Sunday; but on reflection it will be seen that, if more than one mileage may be taxed for a witness, it must be allowed in the case of a witness residing at the most remote point in the state as well as in the case of a witness residing in the county where the trial is to be had. It is evident, therefore, that the taxation of more than one mileage for the same witness might become very oppressive to litigants, and it should only be allowed, I think, when his attendance could not lawfully be compelled unless subpoenaed again. It is one of the highest duties of citizenship to aid in the administration of justice by giving material testimony, and it is not contemplated by the statutes with respect to the payment of witness fees that full compensation or indemnity shall be afforded. The argument to sustain the taxation is based on the fact that the witnesses are not required to be in attendance at the court-house during such adjournment and that now they ordinarily go home. That is also true with respect to adjournments over night, and yet iii such case it has recently been authoritatively held that they are not entitled to mileage. O’Rourke v. Degnon R. & T. I. Co., 139 App. Div. 695. The case of Muscott v. Bunge, supra, was an action by a party against a witness to recover the statutory penalty and damages for his failure to attend, and the court on deciding that the plaintiff failed to prove many essential facts, and among others that the witness was duly subpoenaed,' expressed the view that on an adjournment of the trial from Saturday until Monday the witness was either entitled to per diem fees for both Sunday and Monday, or to be excused or discharged from attendance under the first subpoena and to be duly subpoenaed anew and paid mileage and the per diem fees for Monday.

I am of opinion, therefore, that when a witness is duly subpoenaed to attend court it is his duty, unless relieved by' special application to the court on the ground that there has been an abuse of process in holding him in attendance at the court, to attend from day to day on due payment of the per diem allowance prescribed by the statute, and that it is not necessary, in the case of the usual recess of the court over Sunday or a legal holiday, to subpoena him over and pay another mileage. Of course, if after a witness is duly in attendance the case in which he is subpoenaed should be postponed for some time or the court should be adjourned for a longer period than the ordinary recess, the court would not require the witness to remain in attendance on payment of a per diem fee when it was known that the case could not be moved for trial or that the court was not to be in session; and in such case, doubtless, the attorneys for the respective parties would be warranted, without special application to the court, in serving new subpoenas without applying to the court for a ruling on the question, and that is the effect of the decisions in Moulton v. Townsend, supra, and Miller v. Huntington, supra.

It follows that the motion for a retaxation of the costs should be granted, and that the second item for mileage for said five witnesses should be disallowed, and there should be substituted therefor an item of $5 for the per diem fees of the witnesses and the cost should be retaxed at $240.63, but since the question is novel and not free from doubt no costs of the motion are allowed.

Ordered accordingly.  