contin

used or necessarily obtained for use.28 [If oath to witness fees is not in a separate affidavit, add: That this action was uing as in next Form from the beginning.]

[Stenographer's minutes:]29 That the stenographer's minutes were actually and necessarily obtained for the use of deponent in preparing amendments to the proposed case upon appeal herein; [or, when taxed pursuant to stipulation: that a stenographer was employed by the parties hereto upon the reference of the issues herein, under a stipulation that he should furnish (three) copies of the testimony, at the usual rates, and that the amount thereof should be taxed as a disbursement by the prevailing party;] said stenographer furnished a total of about folios of testimony, [under said employment,] and his charge therefor was at the rate of cents per folio for the (three copies) furnished, which is the usual rate charged by stenographers in the county of [Jurat.]

for such service.

[Signature.]

FORM No. 1690.

Affidavit to witness fees.30

[As in Form 1689 to the *, or add the following to that Form:] [When fees for attendance when the action was not actually on trial, are sought to be taxed:] That this action was at issue and necessarily upon the [day] calendar for trial at a Trial [or, Special] Term of this court [saying where and when; or, if fees on several trials are included, state them as thus: the several Trial Terms held in and for the county of at the court house, in the ; viz.: one commenced on the

28 Id., 3267.

of

29 See notes on this subject to preceding Form; and as to sufficiency of the affidavit, see Wolff v. Horn, 9 Misc. 100, 29 N. Y. Supp. 75.

Even though the minutes were procured before decision rendered or briefs prepared, an affidavit by the attorney that they were procured for the purpose of preparing amendments to the proposed case on appeal makes their cost a taxable disbursement. Bremer v. Man. R. R. Co., 51 Misc. 96. 30 This Form is supported by Lyman 7. Young Men's Cosmop. Club, 38 App. Div. 220, 56 N. Y. Supp. 712; Inderlied v. Whaley, 7 N. Y. Supp.

74, 17 Civ. Pro. Rep. 377; Hicks v. Brennan, 10 Abb. Pr. 304. To much the same effect is Jeffrey v. Hursh, 58 Mich. 246, 27 N. W. Rep. 7.

For the Form where a witness absent at a distance comes home solely to testify, and returns, see Sargent v. Warren, 41 Hun, 103, and cases cited.

31 Allen v. Mahon, 1 Abb. N. C. 468. If the adverse party produces an affidavit that a witness was not sworn, the party claiming to tax fees must produce an affidavit to the reason, and what was intended to be proved by them. See Gilbert v. Kennedy, 22 Mich. 5, 19.

ferred, say: That this action was at issue, and R. F., Esq., of

].

etc., or if re

was referred to

That the cause was brought to trial on the day of 19, and the trial continued days. That each of the persons32 named above as witnesses attended at said trial [and at the several Trial Terms above set forth] as such witness for the plaintiff [or, defendant], the number of days set opposite their respective names; that each of said persons resided the number of miles set opposite their names from the place of said trial, and each of said persons, as such witness as aforesaid, necessarily traveled the number of miles so set opposite their names, in traveling to, and the same distance in returning from, the said trial. [If a contest over the taxing of some of the fees for persons not sworn may be anticipated, may add:] That each and every of said persons named was a necessary and material witness on the part of the plaintiff [or, defendant] on the trial of this action,34 and was duly sworn upon the trial [except the witnesses — names—whose attendance had been obtained by deponent in good faith with the expectation that their testimony would become material on the trial of the issues herein.]35

[Jurat.]

FORM No. 1691.

Referee's affidavit as to time spent.36

[Title of court and cause.]

County of [New York:], ss.:

[Signature.]

R. F., being duly sworn, says: that he is the referee appointed to hear and determine the issues in this action. That under the stipulation of the parties hereto, that the referee should be paid

32 Party not entitled to fee in his own case. Rhoades v. Bank, 12 Phila. 391.

As to attorney, compare Abbot v. Johnson, 47 Wisc. 239; Pearman v. Gould, 42 N. J. Eq. 4, 6 Cent. Rep. 541.

33 If there is a foreign witness, may insert here, "within this State."

34 It is necessary to state that the witness was both material and necessary. O'Loughlin v. Hammond, 12 N. Y. Civ. Pro. Rep. 171. Showing that he was actually sworn establishes these matters prima facie. Wheeler v. Ruckman, 28 N. Y. Super. Ct. 702.

35 Durant v. Abendroth, 48 Hun, 16,

1 N. Y. Supp. 538, 13 Civ. Pro. Rep. 434; Cheever v. Pittsb. etc., R. Co., 74 Hun, 539, 26 N. Y. Supp. 829; Kley . Healey, 2 N. Y. Supp. 231, 18 St. Rep. 174. Additional require ment when taxing witness fee under order postponing trial, see Form 1617.

36 An affidavit by the referee may properly be presented. See Eagan t. Eagan, 51 App. Div. 635, 64 N. Y. Supp. 836; Gilbert v. Deshon, 16 N. Y. Supp. 36, 40 St. Rep. 799. A certificate by the referee as above, with the affidavit of the attorney as to payment, has been held enough. Matter of Reeves, 25 N. Y. St. Rep. 457.

[

dollars per hour and

dollars for each adjourn

ment,] and [if such further stipulation has been made] that each party should pay one-half of such fee from session to session as the referee proceeded, a total of dollars was paid to deponent, of which the [defendant] paid one-half, or dollars. This said sum represented the hours during which the hearings before deponent were continued, together with the various adjournments had, and charged for at said stipulated

rate.

The [defendant] has also paid deponent the further sum of dollars [in addition to the dollars before referred to], which was the amount of deponent's charge, at said stipulated rate of dollars per hour, for hours which deponent necessarily spent in considering the evidence and exhibits, and determining the issues herein.

The total sum paid to deponent by said defendant is dollars, all of which should be taxed herein as a disbursement, under the stipulation of the parties.

Please take notice, that the within bill of costs will be presented to the clerk of this court [or, of the county of

,] for adjustment, at his office, in the [County Court House] in the

city of

in the

on the

noon.

day of

19 at

[Signature and office address of],
Attorney for

37 As to time for serving, see Code Civ. Pro., §§ 3263, 3161, subd. 6. When the Appellate Division awards $10 motion costs "and disbursements," the latter must be taxed. Margulies v. Damrosch, 23 Misc. 77, 51 N. Y. Supp. 833.

o'clock

If the bill of costs as originally presented and taxed omits items, the remedy is by motion for leave to substitute and tax another bill of costs. See Talcott v. Wabash R. Co., 99 App. Div. 239, 90 N. Y. Supp. 1037.

FORM No. 1693.

Objections to taxation.38

Upon the taxation of costs herein the [defendant] files the following objections with the clerk of this court: [stating them in

[Signature and office address of],

FORM No. 1694.

Notice of re-adjustment of costs.40

[As in Form No. 1692, except substituting "readjustment " for "adjustment."]

FORM No. 1695.

Notice of motion for retaxation of costs.41

Please take notice, that upon the bill of costs, as adjusted by the clerk of this court, and the affidavit of A. T., thereunto annexed, and the annexed affidavit of [etc., specifying all papers before the clerk,43 and continuing as in Form 815, p. 1171, stating

as relief sought:] for a retaxation of the costs herein, by striking out from the costs as allowed by the clerk the trial fee [etc., specifying what—or, by adding thereto - specify what.] And that the amount so stricken from the bill of costs as adjusted by the clerk, and included in the judgment entered herein on the day of 19 be credited upon any execution issued upon said judgment," and for such other relief as may be just, with costs of this motion.

FORM No. 1696.

Order on motion for retaxation.45

[Title (court order) and recitals; see Form 820, p. 1174.]

amount thereof, viz.,

ORDERED, that the taxation of costs herein be modified by striking out the item of $ for [etc.], and that the total dollars, be credited upon the execution to be issued herein, together with ten dollars costs of this motion. [Or, by inserting $ for stating corrections].

46

[Or if a question of fact remains to be determined, may say:] ORDERED, that the taxation of costs herein be set aside, and a retaxation be had on [two] days' notice with leave to either party to use additional affidavits before the clerk [and may state the grounds or proofs on which item in controversy shall be determined].47

Enter: [signature of judge by initials of name and title.]

FORM No. 1697.

Judgment on inquest.48

[Title of court and action.]

This cause having been regularly brought on for trial upon the issues of fact, this [or, the] Term of this court, before Mr.

92 N. Y. Supp. 619; Evans v. Silbermann, 7 App. Div. 130, 40 N. Y. Supp. 298.

It is not necessary that an affidavit presented to the clerk upon the taxation should have been filed. Evans v. Silbermann, supra.

Copies of the papers before the clerk need not be served with this notice of motion. Ferguson v. Wooley, 9 N. Y. Civ. Pro. Rep. 236. 44 N. Y. Code Civ. Pro., § 3264. The judgment is not to be changed but the amount of the reduction is

day of 19 at a Trial Justice J. K. and a jury; after

to be credited upon the execution. Hewitt v. City Mills, 136 N. Y. 211, 29 Abb. N. C. 459.

45 N. Y. Code Civ. Pro., §§ 22642265. Crosley v. Cobb, 37 Hun, 271.

46 Lyman v. Young Men's Cosmol. Club, 38 App. Div. 220, 56 N. Y. Supp. 712.

47 If costs have been taxed in favor of wrong party a new taxation should be ordered. Adolph v. De Ceu, 45 Hun, 130, 13 Civ. Pro. Rep. 5.

48 For affidavit of merits to pre vent, see Form 1604.