John Voght & Co. v. James G. Ticknor.
Under ch. 188, sec. 22, Rev. Stats., the party giving notice to take depositions is liable to pay tho statute compensation for. the other party’s travel if no depositions are taken, although the party giving the notice acted in good faith, and expected to be able to procure the attendance of his witnesses, and used reasonable diligence to procure such attendance, and had no notice that they would not attend.
Under the same statute, “twenty-five cents amile'.for actual travel” each way, may he recovered.
Tins is an action on the case, founded upon section 22, page 486, of the Compiled Statutes. In a previous action between the same parties, now pending in this court, the defendant- gave the plaintiffs notice to take a deposition or depositions before a justice of the peace, at the office of one Mr. Trumble, in Jay, in the State of New York, on the 20th day of February, A. D. 1867, at 10 o’clock in the forenoon. It is admitted that the notice was properly made out and signed, and a copy thereof served upon the plaintiffs or their attorney, in accordance with the statute; that the attorney of the plaintiffs actually travelled four hundred miles, (i. e., two hundred miles each way,) to attend the taking of the deposition or depositions, and that the plaintiffs were not notified that the same would not be taken; and that defendant did not take any deposition or depositions at the time and place specified in the notice; that the counsel for plaintiffs appeared at the appointed time and place and waited one hour, or until 11 o’clock in the forenoon, for the depositions to be taken. It is also admitted that defendant acted in good faith in giving notice, and expected to be able to procure the attendance of his witnesses, and used reasonable diligence to procure such attendance, and had no notice that they would not attend; also, that the witnesses left their home for the purpose of giving their depositions agreeably to said notice, but after proceeding some fifteen miles, returned in consequence of the severity of the weather, and tlie illness of one of them, and did not appear on said 20th of February, at said. Trumble’s office.
JMorris, Q. W. & JE. JD. Sand, for plaintiffs.
JBlaisdell and Hibbard, for defendant.
Smith, J.
"If any party, after giving nance to the adverse party as aforesaid, shall neglect or refuse to take a deposition, such adverse party shall be entitled to recover twenty-five cents a mile for actual travel of himself or his attorney, to attend the -same, by action on the case, unless seasonably notified in writing, signed by the party giving such notice, that such deposition will not be taken.” Revised Statutes-, eh. 188, sec. 22.
Under the foregoing statement, of facts, this action can be maintained; and the plaintiffs are entitled to, recover for the travel of their attorney-each way.