they cannot, upon the submission of the facts to me, I shall fix it.
I have reached the above conclusion after a consideration of all of the authorities which the parties have called to my attention. Basically, however, taxation of the cost of copies of the record is a discretionary matter, the decision of which, depending upon the facts, will vary from case to case. The conclusion which I have arrived at appears to be the proper one under the facts before me.
Cost of the Transcript of Pre-Trial Arguments
The defendant Liggett & Myers contends that the Clerk erroneously disallowed the cost of transcribing the pretrial arguments before Kraft, J., on September 17, 1957 and June 17, 1958, and before me on April 14, May 14, and November 24, 1959. These arguments dealt with objections to interrogatories, motions to compel deposition witnesses to answer questions, for leave to amend the complaint, and to certify a question to the Court of Appeals. A review of these transcripts and related papers indicates that, except for the twenty-nine-page transcript of the argument before Judge Kraft on June 17, 1958, none were necessary for use in the case either by counsel or by me. A different conclusion is not required because the ruling which I made on the matter argued before me on November 24, 1959 was contained at pp. 21-24 of the transcript. I am not certain whether an order was entered consistent with my ruling; but even if no such order was entered it could have been, and it was not necessary to prepare a transcript of the argument to preserve the ruling.
The cost of transcribing the argument before Judge Kraft on June 17, 1958 should be allowed. The order which I entered on October 6, 1958 states that all counsel agreed that the motion argued before Judge Kraft on June 17, 1958 should be determined by me 'on briefs filed and argument theretofore had before Kraft, J.' Obviously, I could make no disposition upon the basis of any argument presented to Judge Kraft unless I had a transcript of it before me. The transcript was therefore necessary for use in the case.
Cost of the Transcripts of Post-Trial Arguments
The argument of the defendant Liggett & Myers to the contrary notwithstanding, the Clerk properly disallowed the cost of transcribing the arguments which took place on March 25, April 1 and April 21, 1960. These dealt, for the most part, with the motions of the defendants for directed verdicts, and, in minor part, with the motion of Reynolds to strike certain portions of plaintiff's brief opposing the directed verdict motions. Prior to the arguments the motions had been fully briefed by the parties. Although the transcripts were of some convenience to the Court in ruling upon the motions, they were in no sense necessary for use in the case.
Let an order be submitted consistent with the rulings herein.
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