Wheeler v. Lozee
New York Supreme Court
This was an action tried before a referee at Ithaca, who made a report for the defendant. On the adjustment of the defendant’s costs by the clerk of Tompkins county, the plaintiff objected to the clerk allowing the defendant fees for Charles Rockwell and Ezra Lozee, travelling 213 miles each, as witnesses in the action. It was shown they Resided in Ohio, and that each of them attended one day as a witness for the defendant before the referee.
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This was an action tried before a referee at Ithaca, who made a report for the defendant. On the adjustment of the defendant’s costs by the clerk of Tompkins county, the plaintiff objected to the clerk allowing the defendant fees for Charles Rockwell and Ezra Lozee, travelling 213 miles each, as witnesses in the action. It was shown they Resided in Ohio, and that each of them attended one day as a witness for the defendant before the referee. The defendants affidavit stated they actually travelled within this state in order to attend said trial the distance aforesaid; and that they were…
1Opinion of the Court
By the court-—Balcom, Justice.
The process of subpoena is given to a party to enable him to compel the attendance of his witnesses at the trial; but there can be no absolute necessity for using such process when witnesses will voluntarily attend without it. As matter of prudence, parties should subpoena their witnesses; but it cannot be material to the adverse party wether the witnesses opposed to him attend in obedience to a subpoena or by agreement, as there is now no fee for the service of a subpoena. (Jackson agt. Hoagland, 1 Wend. 69; Willink agt. Reckle, 19 id. 82.)
Witnesses are entitled…
2Cases cited5 opinions
- Willink v. ReceleNew York Supreme Court · 1837
- Bank of Niagara v. AustinNew York Supreme Court · 1831
- Howland and Others Against Lenox and Maitland.New York Supreme Court · 1809
- Hurd v. SwanNew York Supreme Court · 1847
- Jackson, ex dem. Finch v. HoaglandNew York Supreme Court · 1828
3Cited by2 opinions
- Inderlied v. WhaleyNew York Supreme Court · 1889
- Merriman v. BowenSupreme Court of Minnesota · 1886