The travel fees paid the witness Hawley were properly allowed. At the time of the trial the witness’ permanent residence was in the city of Rochester. "When subpoenaed he was temporarily in the *192city of New York on business. He refused to attend unless he was paid the statutory travel fees. The plaintiff thereupon complied with this demand and paid him thirty-three dollars and thirty cents. Hawley made an affidavit that he was obliged to travel from the city of New York to the city of Rochester for the purpose of attending the trial, and after it was over to return to New York.
Upon these facts and circumstances the parties submit the question as to the right of the plaintiff to tax the fees of the witness. We cannot say that the plaintiff wab in fault in omitting to serve a subpoaua on the witness, at his permanent home, before he left on businéss for the place where he was found and served. As it appears that the witness was compelled to make the journey in obedience to the demands of the process, it was just and proper for the plaintiff to indemnify him for his traveling expenses. The rule is to allow travel fee when paid to a witness in such cases, unless it appears that the party was in fault and guilty of negligence, in omitting to serve the subpoena before the witness left his home.
In view of the facts as disclosed, it was incumbent on the party resisting the allowance to show the fault of the party paying the travel fee. (3 Wait’s Pr., 303; 2 Abb. N. Y. Dig., 413.)
The plaintiff procured from the stenographer a copy of the evidence, whose fees amounted to forty dollars and five cents, which was allowed as an item of disbursement in the bill of costs as taxed. The affidavit as to the disbursements was made by the plaintiff’s attorney, and it states that the items of disbursement set forth in the bill were “ actually made and incurred.” The trial judge made a certificate, in which he stated that on the trial he desired the stenographer’s minutes to be furnished the court, and that the stenographer’s fees be taxed as a disbursement.
The defendant presented an affidavit, that at the close of the trial he called for and procured a copy of the stenographer’s notes, for which he paid. It does not appear that the court used the copy procured by the plaintiff, or that it was obtained by him for that purpose. For this reason that item should have been disallowed. The judge’s direction to the stenographer for a copy of the minutes of the trial did not direct that the fees Be paid by either party, and it is therefore to be presumed, if a copy was in fact made for the use of the court, it was without any charges to be paid therefor. (Code of Civ. Pro., § 84.)
*193The order is modified by directing the costs to be readjusted, striking out the item of forty dollars and five cents, stenographer’s fees, and striking out the allowance of costs to the respondent on the motion at Special Term. No costs of this appeal to either party.
Present — Smith, P. J., Barker, Haight and Bradley, JJ.Order modified by striking out the bill of costs, the item forty dollars and five cents stenographer’s fees, and as modified affirmed, without costs of this appeal to either party.