Opinion
June 14, 1956
Present — Foster, P.J., Coon, Halpern, Zeller and Gibson, JJ. [ 208 Misc. 402.]
Appeal by defendants from an order of Supreme Court at Special Term in Albany County striking from the bill of costs in each action an item of $79.25 constituting one half the charge for a transcript of the stenographer's minutes of the trial. These two actions were tried together and resulted in verdicts of no cause for action. Judgments were entered accordingly. Thereafter, each plaintiff filed a notice of appeal to this court and defendants immediately ordered a transcript of the stenographer's minutes. Later, defendants were served with a notice that plaintiffs elected to perfect the appeal by the alternative form of record allowed by rule 22 of this court. The appeals were heard and the judgments appealed from were affirmed. ( 286 App. Div. 934.) When the defendants entered judgment they included as part of their costs the amount paid for the stenographer's minutes. To this plaintiffs object. The alternative form of record permitted by rule 22 of the Rules of the Appellate Division, Third Department, consists of one original typewritten record prepared according to prescribed standards plus appendices to the briefs containing relevant portions of the record. The rule provides: "The rules governing the settlement of a case shall apply to the preparation of the alternative form of record, except that a party served with a proposed case shall return the same with his amendments, if any, to the party proposing settlement and the case shall be settled on the original proposal and amendments." The rule also provides: "Upon the filing of the alternative form of record the party so filing shall, in lieu of the copies required by Rule 234, serve on the attorney for the adverse party a notice that such alternative form of record has been filed. The clerk may, under such conditions as he deems reasonable, make such record available to the special use of any party." Rule 22 was adopted to explore the possibility of reducing the cost involved in taking appeals. To help effectuate its purpose a single record is made to serve the party taking the appeal, the other parties to the appeal and the court. The record on the prior appeal contained a transcript of the stenographer's minutes and that record was available to the defendants. The rule contemplates that the party perfecting the appeal need pay for only one copy of the stenographer's minutes. If such party is later to be taxed with the costs of another copy of the minutes, the effectiveness of the rule would be lessened. The fact that defendants ordered their transcript before plaintiffs served the notice that they would perfect the appeal under rule 22 is of no moment. Defendants were not entitled to assume that the plaintiffs would not adopt the alternative form of record permitted by the rule. Order unanimously affirmed, with $10 costs.