Keeler v. Barrett's, &c. Dyeing Establishment

Headnote

Costs on separate appeals from judgment and, order denying new trial.] Where a party takes separate appeals from the judgment against him and from the order denying a motion for a new trial made by him upon the judge's minutes, the respondent is entitled, under Code Civ. Pro. § 3251, subd. 4, to tax full costs (§20 before and §40 for argument) upon affirmance of the order with costs, although he has before taxed the same amount upon the prior affirmance of the appeal from the judgment.

Motion by defendant for new taxation of costs.

After a judgment, in favor of the defendant, entered upon a verdict of the jury, had been affirmed by the General Term, the plaintiff entered an order denying a motion for a new trial made by him upon the judge’s minutes at the close of the trial. From this order he took an appeal to the General Term, which affirmed the order with costs.

The clerk refused to tax the bill of costs as presented by defendant for $20 before and $40 for argument- of the appeal from the order, and taxed only $10 costs of motion, and disbursements, on the ground that no case had been made on the motion for a new trial under Code Civ, Pro. § 3251, subd. 3.

Code Civ. Pro. § 8251, subd. 4, is explicit and clear and awards definitely to either party, upon an appeal to the general term of a superior city court, taken from an order denying a motion for a new trial made in the same court, or in a circuit court, before argument $20, for argument $40. See Pilgrim v. Donnelly, 15 Abb. N. C. 240 (holding that where a party appeals from an order made on a motion for a new trial, full costs are awarded although the appellant may be entitled to the like sum on an appeal from the judgment); and Wilcox v. Daggett, 15 Weekly Dig. 208 (holding, that “ the Code fixes the amount of costs in such cases, and we do not understand that it is within the power of the court to change them ”). See, also, to the same effect Bray v. Supervisors of Ulster ( 65 How. Pr. 327 ); Sprague v. Richards ( 30 Hun, 246 ).

No distinction is made by the Code in appeals of this kind as to whether they are heard upon a case or not (Goodridge v. Connor, 66 How. Pr. 143 ). This appeal should not be confused with a motion made at special term for a new trial upon a case made, provided for by subdivision 3 of the same section. The language of the present Code is obviously intended to set at rest any doubt which may have existed under the old Code as to the right of the respondent to full costs upon affirmance on appeal whether the motion for a new trial was made at circuit or special term. See Code Civ. Pro. § 3251, subd. 4, and § 3239 overruling directly Bragne v. Lord, decided by the general term of this court in May, 1877, 41 Super. Ct. (J. & S.) 193, which interpreted § 307, and § 349 of the Code of Procedure.