Dowling v. Bush
New York Supreme Court
Motion for retaxation of costs. ■ The plaintiff was nonsuited on the trial at the Ontario circuit. The clerk on the taxation of the costs allowed the defendant attendance and travel fees for nine witnesses. ' The affidavit of the defendant, presented to the clerk, stated that each of said witnesses “ attended as a witness on the trial of this cause the number of days and traveled the number of miles in going to and returning from said trial hereinafter stated,” stating the…
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Motion for retaxation of costs. ■ The plaintiff was nonsuited on the trial at the Ontario circuit. The clerk on the taxation of the costs allowed the defendant attendance and travel fees for nine witnesses. ' The affidavit of the defendant, presented to the clerk, stated that each of said witnesses “ attended as a witness on the trial of this cause the number of days and traveled the number of miles in going to and returning from said trial hereinafter stated,” stating the same. It also stated that each was subpoenaed in good faith under advice of counsel and that each and every of them was a…
1Opinion of the Court
Johnson, Justice.
The defendant’s affidavit was anundantly sufficient, uncontradicted, to authorize the allowance of all the fees for travel and attendance. But when the plaintiff showed that the foreign witnesses were not in attendance, but had left for their residences in a foreign state before the trial was brought on, the clerk should have called for explanation and further proof before allowing their fees. The ordinary affidavit should haVe been no longer followed as sufficient (Dean vs. Williams, 6 Hill, *412376). Where the departure of the witnesses before the trial was shown, or enough…
2Cases cited2 opinions
- Booth v. SmithNew York Supreme Court · 1830
- Bank of Niagara v. AustinNew York Supreme Court · 1831