Berner v. British Commonwealth Pacific Airlines, Ltd.
| Decision Date | 20 June 1966 |
| Docket Number | Docket 30162.,No. 356,356 |
| Citation | 362 F.2d 799 |
| Parties | T. Roland BERNER and Arthur S. Lesser, Executors of the Estate of William Kapell, deceased, Plaintiffs-Appellants, v. BRITISH COMMONWEALTH PACIFIC AIRLINES, LTD., a Foreign Corp. and British Commonwealth Pacific Airlines, Ltd., now doing business as Qantas Empire Aviation, Ltd., a Foreign Corporation, Defendants-Respondents. |
| Court | U.S. Court of Appeals — Second Circuit |
Sidney Bender, New York City (T. Roland Berner, New York City, on the brief), for plaintiffs-appellants.
Austin P. Magner, New York City (George N. Tompkins, Jr., Condon & Forsyth, New York City, on the brief), for defendants-respondents.
Before LUMBARD, Chief Judge, and MOORE and FEINBERG, Circuit Judges.
Plaintiffs appeal from a judgment entered in the District Court for the Southern District of New York taxing them for costs in favor of defendants for $5,312.50. Plaintiffs also request reconsideration and reversal of the taxation of $2,428.75 as costs entered by this court against them as the losing party upon a previous appeal. We find that the district court did not abuse its discretion in charging these costs to the losing party and we therefore affirm.
The plaintiffs had brought suit for wrongful death on behalf of the widow and children of the noted pianist William Kapell who was killed in an airplane crash in 1953. After a jury verdict for the defendants, Judge Ritter, sitting by designation, granted judgment n. o. v. for the plaintiffs. At the new trial on the issue of damages, a jury awarded plaintiffs $924,396. This court reversed the judgment n. o. v., 346 F.2d 532 (1965), and judgment accordingly was entered in favor of defendants. Pursuant to that decision, the costs of the appeal were taxed to the losing plaintiffs-appellees in the amount of $2,428.75. We decline to reconsider the propriety of the amount so taxed.
The clerk of the district court taxed the plaintiffs $5,672.70 for fees, costs of the transcript, costs incident to the taking of depositions, and the costs of a supersedeas bond. Upon review, Judge McLean disallowed the costs incident to the taking of depositions and confirmed the balance of the charges which total $5,312.50.
Appellants claim that the charge for the transcript of the trial was improper because the transcript was not "necessarily obtained for use in the case" as required by 28 U.S.C. § 1920(2), and that the posting of the supersedeas bond to stay the execution of the large judgment during appeal was unnecessary.
Although defendants obtained the daily transcript for their "convenience," the amount charged was the basic prevailing rate...
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