Kley v. Healey
New York Court of Common Pleas
This was an appeal from the taxation of defendant’s costs by the clerk. Plaintiff’s complaint was dismissed at the equity term in June, 1888. The cause had previously been partially tried before a. referee, who died before its final submission.
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This was an appeal from the taxation of defendant’s costs by the clerk. Plaintiff’s complaint was dismissed at the equity term in June, 1888. The cause had previously been partially tried before a. referee, who died before its final submission. The clerk disallowed defendant a trial fee before the referee, and also the fees of all witnesses (thirty-three in number) whom it was conceded, had the trial gone so far, would have been called to impeach the plaintiff or some of her supposed-witnesses, although they had been duly subpoenaed and. their fees paid. Further facts appear in the opinion.
1Opinion of the CourtVan Hoesen, J.
Two trial fees should be allowed. The court exercises a control over suitors to the extent of preventing the abuse of a legal right. Ordinarily the court will not interfere where a litigant has subpoenaed any number of witnesses that he honestly believes necessary to-maintain the issue on his side. But there are cases in which the control of the court is indispensable if oppression is to be prevented. In Irwin v. Deyo (2 Wend., 285), where forty witnesses were subpoenaed to support general *175character in an action of slander, they all attended, but only two were sworn, and the court refused to…
2Cases cited2 opinions
- Bissell v. CornellNew York Supreme Court · 1840
- Irwin v. DeyoNew York Supreme Court · 1829