In re the Voluntary Dissolution of Rateau Sales Co.

The objectors in this proceeding, upon the taxation of their costs on an appeal to the Court of Appeals, have included as a disbursement an item of one hundred and seventy-eight dollars and five cents for printing the record. The petitioners move to reduce the item to thirty-seven dollars and sixty-five cents. It was shown by the papers before the clerk upon the taxation, and is conceded, that upon the appeal to the Appellate Division, from which court the appeal to the Court of Appeals was later taken, the objectors, who were the appellants, procured extra copies of the record to be printed in excess of the number required for use in the Appellate Division. This was done in anticipation of a possible appeal to the Court of Appeals. .The additional expense thus incurred amounted to thirty-one dollars and twenty cents, and when the appeal to the Court of Appeals was finally taken certain additional printing was done at a cost of six dollars and forty-five cents. The total cost of printing thus incurred in prosecuting the two appeals exceeded by thirty-seven dollars and sixty-five cents what would have been necessarily incurred in printing the record for the appeal to the Appellate Division. The sum taxed represents what it would have cost to print the record in the Court of Appeals if it had been printed by itself and specially for use on the appeal to that court. I think the motion to reduce the taxation to the smaller sum must be granted. The only actual disbursements made necessary by the appeal to "the Court of Appeals were thirty-seven dollars and sixty-five cents. The balance of the cost of the printing was a necessary disbursement of the appeal to the Appellate Division, and would have been properly included in a bill of costs upon the appeal to that-court. The Court of Appeals, however, has not allowed the objectors their costs in the Appellate Division, *134but only in the Court of Appeals. A party is entitled to tax only such actual and necessary disbursements or expenses as he has made or incurred, and the bill is required to be verified by affidavit. Code Civ. Pro., § 3267. The facts in this case are not distinguishable from those in Potter & Markham v. Carpenter & Co., 56 How. Pr. 89, where the General Term allowed only the actual additional expense of printing the extra copies and the additional papers necessary for the Court of Appeals record. It is suggested that there is a conflict between the case just cited and Consalus v. Brotherson, 54 How. Pr. 62, decided by the sarde General Term a few years earlier, but the facts of the two cases are different, and notwithstanding that their former decision was called to the attention of the General Term, as appears by the report, they reached the conclusion they did in the later case. The clerk erred in overruling the objection to the item in question and the motion for a retaxation must be granted, with ten dollars costs to the petitioners personally.

Motion granted.