The appeal is from an order retaxing a bill of costs by deducting therefrom so much of the cost of printing the exhibits which is included in the item of $1,416.27, “Paid Printing Oases, Appellate Division,” as exceeds the sum of *148$350, to wit, the sum of $701.27. The amount taxed by the clerk was $1,690.56 for printing the case on appeal to the Appellate Division. The plaintiff applied at Special Term to retax the costs so as to reduce this amount allowed for printing the case on appeal, and the court, on that application, entered the order reducing this amount by the sum of $1,021.87, and from that order the defendant appeals. On the taxation of costs there was submitted to the clerk an affidavit of the assistant corporation counsel, which stated that a galley proof of the case on appeal, including a copy of exhibits, with lithograph copies of certain of the plaintiff’s exhibits, was submitted to the plaintiff’s attorney and no objection was made to the printing of these exhibits in full or to the style or process used in reproducing the plaintiff’s exhibits, and that subsequently a printed copy of the record was submitted to the court and allowed by it as the case on appeal, and there is the usual stipulation that the case as printed be filed, as was subsequently done. There is also submitted the affidavit of the printing company which printed the record, in which it appears that the prices charged for the printed matter and for reproduction of those exhibits are reasonable and just; that the method used was the usual method of making true and lasting copies of maps, diagrams, and copies similar to such exhibits for use in cases on appeal; that said process is the cheapest method of reproduction where true and lasting copies are required, and particularly where more than one color is involved; and that the case and points conform in every respect to the general rules and practice and rules of the Appellate Division. And there was submitted with this exhibit a bill rendered by the printer to the city of New York, the defendant, for printing the case and lithographing the exhibits. Other affidavits were also submitted, tending to show that the prices charged were reasonable and proper charges for such records, including the exhibits. On behalf of the plaintiff there was submitted the affidavit of his attorney, which merely stated that he objected to the allowance of the sum of $1,690.56 for printing the case on appeal to the Appellate Division, and the affidavit of the plaintiff and one Olambour in support of such objections. The affidavit of the plaintiff was merely that he *149objected to the amount of this allowance, and the affidavit of Clambour was to the effect that he was in charge of a lithographing and printing business; that he had examined the exhibits, and that a reasonable charge for making thirty copies thereof was $225, and for sixty copies $275. The clerk allowed defendant for printing the records $1,416.27. Plaintiff recovered judgment against the defendant, from which the defendant appealed. It printed the case on appeal with the proper exhibits, and adopted a method of reproducing these exhibits which seemed proper, and upon which the Court of Appeals decided that the judgment against the city was erroneous, and there finally resulted a judgment in favor of the defendant. There is no proof that the defendant has actually paid the bill of the printer, but the evidence is quite satisfactory that the defendant had incurred the expense of printing this case on appeal, and it seems to have been printed and the exhibits lithographed in accordance with the wishes of the plaintiff, or certainly without any objection on his part; and the defendant having actually incurred the expense of this printing, it seems to me that the defendant was entitled to tax the actual cost of printing as part of the necessary disbursements on appeal. The affidavit of this manager of a printing concern, that a reasonable charge for making thirty copies of this case on appeal would be $225, and for sixty copies $275, would seem to be clearly overborne by the affidavits presented on the part of the defendant, that the price charged by the defendant’s printer, and which had been incurred by the defendant as a necessary disbursement on the appeal, was a reasonable charge, and I do not think the Special Term on these affidavits was justified in retaxing the costs and throwing upon the defendant the expense of an appeal made necessary by an erroneous judgment obtained by the plaintiff and to which it was finally decided the plaintiff was not entitled. I think, therefore, the order appealed from should be reversed, with ten dollars costs and disbursements, and a motion to retax the costs denied, with ten dollars costs.
McLaughlin and Clarke, JJ., concurred; Laughlin and Scott, JJ., dissenting.