Kley v. Healey
New York Court of Common Pleas
Appeal from clerk’s taxation of costs. Plaintiif’s complaint was dismissed at the trial. 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 33 witnesses who were duly subpoenaed, and whose fees had been paid, and who would have been called to impeach the plaintiff, or her supposed witnesses, if the trial had proceeded.
1Opinion of the Court
Van 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 40 witnesses were subpoenaed to support general character in an action of slander, they all attended, but only 2 were sworn, and the court…
2Cases cited2 opinions
- Bissell v. CornellNew York Supreme Court · 1840
- Irwin v. DeyoNew York Supreme Court · 1829