Lowerre v. Vail

Birdseye, J.

The court may unquestionably exercise a discretion as to the number of witnesses for which a prevailing party shall be allowed to tax costs. The party is bound to exercise a proper discretion as to the number of witnesses necessary to prove or disprove a fact. He cannot call an unlimited number of witnesses, and charge the expense upon his opponent. If he err in calling more than the court deem necessary, he must bear the expenses of his own mistake.

But, unless there is a clear disparity between the end to be accomplished by the proof and the instruments for its accomplishment, I think the court should not interfere. Where forty witnesses to a question of character were compelled to attend, *229and only two were sworn, the court properly interfered, and allowed the expense of ten only of the forty witnesses (Irwin v. Deyo, 2 Wend., 285). The abuse there was manifest. I do not find the same abuse here.

The same issue had been previously tried, and found against the defendant. On that trial, he had been allowed to examine twelve witnesses. For this trial, he had seventeen in attendance—a number slightly greater than he had on the previous trial; but the increase was no greater than he had a right to expect he would be called upon to meet on the other side, for the litigation had been pressed with such vigor as to justify and require ample preparation for the defence. The limitation put by the presiding judge on the number of the witnesses to be examined was a departure from the course pursued by the court on the previous trial. Though quite proper, it could not have been anticipated by the defendant. It was not made till all the witnesses were subpoenaed, and in attendance, nor until the second day of the trial, and nearly or quite at the close of the plaintiff’s case.

"Under all the circumstances of the case, I do not find any evidence of unfair dealing or of a design to impose unnecessary expense upon the plaintiff. On the contrary, the presumption was rather that all this expense would have to be borne by the defendant, for the previous trial had resulted unfavorably to him.

As there has been no abuse of the discretion confided to the party, there seems to be no occasion for the interference of the court.

The clerk’s adjustment is affirmed, with $7 costs of the motion to the defendant.