Dunham a. Sherman. DUNHAM a. SHERMAN. New York Superior Court; Special Term, October, 1860. COSTS.-COMMISSION TO TAKE DEPOSITION. In taxing costs in a cause, the prevailing party is entitled to include his disbursements for fees of the commissioner, by whom testimony was taken under a commission. He is not entitled to include witness-fees, other than according to the rate prescribed by our statute, except on showing that the fees of witnesses in the country where the commission was taken, were regulated by law, and attendance could not be compelled without payment accordingly. He is not entitled to include the charges of a solicitor employed abroad. Appeal from the clerk's taxation of costs. In this cause a commission to take testimony in England had been obtained by plaintiff, and executed in the course of the proceedings. The plaintiff's notice of taxation of costs, included as one item, commission-fees, $192.12, and his affidavit to disbursements, was merely in the ordinary form, that the foregoing disbursements have been, or may be necessarily made or incurred, in the action. The clerk allowed this against the objection of the defendant, who thereupon appealed to the court. Benjamin Vaughan Abbott, for the defendant.-The clerk shall insert * * * the reasonable compensation of commissioner in taking depositions. * * (Code, 311.) The * case of Finch a. Calvert (13 How. Pr., 13), which may be cited by the plaintiff, is no authority, as to solicitors' fees, the decision having been made before the amendment of the Code, in 1857. In all cases the power conferred on a commissioner to take testimony is strictly personal, and he cannot delegate his authority. (1 Har. & Gill., 154.) It is submitted that under section 311 above, it must affirmatively appear that the compensation is reasonable. If, not, it should be disallowed Dunham a. Sherman. (Shultz a. Whitney, 9 Abbotts' Pr., 71), and especially when it is manifestly unreasonable. Judgment is given for $757. The costs, as taxed, are exclusive of disbursements, $82, with an allowance of $37.50, amounting to $119.50. This the Legislature have given to plaintiffs as a reasonable equivalent to their counsel's charges for the whole litigation. The commissioner gets more for his labor than the plaintiff's attorney. The referee's bill is $107.50, at the rate of $5 the session (the law authorizing no more than $3, except by consent), for services running through nearly a year. It is no exaggeration to say he has performed ten times the labor of the commissioner, whose duties were little more than those of an amanuensis. Any thing besides, and a reasonable per diem compensation to the commissioner, is believed not to be taxable against the defendant. The witness-fees before commissioner cannot be allowed on the ordinary affidavit, and any such items on the part of plaintiff have never been offered to taxing officer. (See Case a. Price, 9 Abbotts' Pr., 111.) "The affidavit showing the disbursement, should also show the reasonableness of the charge, and that it is fair, just," &c. Robert D. Benedict, for the plaintiff. HOFFMAN, J.-The plaintiff sued out a commission to London, in which the defendant joined, so far as to exhibit crossinterrogatories. The commission was executed by a single commissioner, and it appears that the examination took place on the 8th and 9th days of December. His charge for exeenting it was £10 108. The bill of seven witThe fees To this was added a bill of £28 188. 8d., paid solicitor's bill, including payment to witnesses, making together £39 88. 8d., or $192.12, which has been allowed by the clerk. the solicitor is in detail, and contains, for payment to nesses (one from Scotland, £8), the sum of £17 98. are £1 18. to three witnesses; £2 28. to three witnesses, and the £8 to one. The remainder is for the services of the solicitor employed by the plaintiff to superintend the execution of the commission. It is made up of items for attendances on the commissioner, and on the witnesses, with sums paid for copies of the interrogatories and cross-interrogatories which some of Dunham a. Sherman. the witnesses requested might be left with them for examination to refresh their recollection. I. The commissioner's fees are expressly allowed by the amendment of section 311 of the Code made in 1857. Justice Clerke has considered them proper, even before such amendment. (Calvert a. Finch, 13 How. Pr., 13.) II. The proper fees for the attendance of witnesses is also a necessary disbursement. I agree with Justice Smith in his views upon this point. (Case a. Price, 9 Abbotts' Pr., 111.) But a difficulty exists as to the measure of such allowance. I am prepared to say, that the attendance-fee allowed in our fee-bill (fifty cents), is proper to be taxed as to witnesses examined under a commission, and also the travelling-fees when the distance is over three miles, as therein prescribed; on this basis, the charge of the witness from Scotland, and of any other of the witnesses, might be allowed, had the affidavit been sufficient. (Wheeler a. Lozee, 12 How. Pr., 448, and cases.) A witness travelling from another State, to be examined here, is entitled to his travelling-fees from the boundary line within the State, to the place of trial, the distance to be estimated by the nearest usual travelled route. (Wheeler a. Lozee, 12 How. Pr., 448.) I am inclined to think that if the fees of witnesses are regulated by the law of the country in which a commission is executed, and the attendance cannot be procured without payment of such fees, that should form the rule of allowance here. The case is not so before me as that I can pass upon the question. III. There can be no ground for allowing the charges of the solicitor employed abroad. Had the attorney on record been present, he could have got nothing specially for the services. An allowance has been made in this case. Expenditures of this description must be borne by the party himself, as he bears counsel-fees. The taxation must be readjusted, by allowing the commissioner's fees, £10 108., disallowing the solicitor's charges for services, £11 98. 8d., and also the £17 98. for witnesses, but with liberty to the plaintiff to have the fees of witnesses adjusted upon the basis of the fee-bill of our State, as before pointed out. Order for retaxation. Howard a. Raymond. HOWARD a. RAYMOND. New York Superior Court; Special Term, October, 1860. PLEADING.-ANSWER. In an answer to a complaint for libel, matter which is alleged in justification may also be properly alleged in mitigation of damages. Demurrer to complaint. This was a suit against the proprietor of the New York Times for a libel; consisting in an article containing certain statements relative to the plaintiff's conduct in matters in which he had been employed as a lawyer. The case came up before Justice Hoffman, in the Superior Court, on demurrer by plaintiff to the defendant's answer. The answer, among other things, set up that the article com plained of was true; specifying particulars, pleading the truth in justification. It also contained a count that defendant would set up the same things in mitigation of damages in the following form. And in mitigation of any damages to which the plaintiff might otherwise appear entitled by reason of the publication of said supposed libellous article, this defendant says I. That he repeats and renews all and singular, the matters stated under the second defence herein; and will give evidence thereof in mitigation of damages, as well as in justification. II. That all the matters and things stated under the second defence were, on the 28th of May, 1860, currently reported and believed in the cities of New York and Brooklyn, and were published in a certain newspaper, called The Brooklyn Daily Times, published in said city of Brooklyn, and were so communicated to this defendant, and published by him as matters of current public news, he verily believing the same to be true. Howard a. Raymond. Plaintiff demurred to the answer on the ground that it did not state facts sufficient to constitute a defence. H. P. Herdman, for the plaintiff, conceded that the matters pleaded would be good in mitigation of damages, but contended that they did not amount to a justification. The rule was, the justification must be as broad as the charge. There was nothing alleged against the plaintiff in the answer, which an honorable and high-minded man might not commit. Considered as grounds for mitigating damages, the matter pleaded might as well be shown before a sheriff's jury. Benjamin Vaughan Abbott, for the defendant, argued that if the matter pleaded were admissible in mitigation, the answer must be sustained. The construction now placed upon the section of the Code, which permits defendant in libel to set up both justification and mitigating circumstances, allows him to plead the latter alone. The earlier decisions had been the other way; but the Court of Appeals has overruled them. (11 N. Y. (1 Kern.), 357.) He contended also that the justification set up was sufficient as a bar. HOFFMAN, J.-I think the answer in the present case is within section 165 of the Code, as interpreted by the case of Bush a. Prosser (1 Kern., 357). There are allegations which, fairly construed, amount to a justification of the libel, and there are circumstances stated avowedly in mitigation of damages. I think (but I believe the point is new), that it is immaterial that the matters stated in mitigation, are the same as those presented in justification. In other words, these facts are set forth as an absolute defence to any claim, and if insufficient for that purpose, as a partial defence, by operating to reduce plaintiff's recovery. In my opinion, this is the construction of the pleading, and this is warranted by the Code. Demurrer to the answer overruled, with costs. |