McWhirter v. Bowen — 114 A.D. 68

Majority

p. 68

William H. McWhirter, Respondent, v. Abner T. Bowen and Others, Appellants, Impleaded with Alwin Eisert, Respondent, and Dime Savings Bank of Brooklyn, Defendant.

First Department,

June 15, 1906.

Headnote

Costs —when awarded against respondent on appeal who did not appear on trial below.

Although a defendant did not answer or appear in an action, he may be charged with the costs of an appeal if he appears thereon and unsuccessfully insists that clauses in the judgment below granting him relief should be retained in the judgment. Under such circumstances a motion below to modify the judgment upon the remittitur by the Appellate Division so as to award costs allowed against him on the appeal should be granted. Costs should be limited to the costs of the appeal on which he appeared.

p. 69

Appeal by the defendants, Abner T. Bowen and others, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 23d day of February, 1906, denying the said defendants’ motion to correct and amend a judgment entered on the 23d day of January, 1906, on a remittitur from the Appellate Division.

Henry B. Johnson, for the appellants.

James M. Fisk, for the respondent Eisert.

I think this motion should have been granted. The defendant Eisert was awarded substantial relief by the judgment, although he had not answered - in the action and took no part in the trial. He, however, appeared by counsel as a respondent upon the appeal and sought to sustain the judgment in his favor. Upon the appeal, the decision of this court was against him and an order was entered modifying the judgment by striking out the clause in Ms favor. This order, after reciting that counsel appeared “ for said plaintiff and for said defendant Eisert, respondents,” modified the judgment and further ordered that as so modified the judgment “is hereby affirmed, with costs to appellants against respondents.” Whether or not the defendant Eisert appeared in the court below, or answered, is not material as to the responsioility for the costs of the appeal. He did appear in this court as a respondent, and insisted that the clauses of the judgment which were in his favor should be retained in the judgment, and he be awarded the relief that that judgment gave him. This court held that he was not entitled to have the relief awarded to him by the judgment, and modified it and gave costs against him on the appeal. The motion below was to modify the judgment entered upon the remittitur from this court, so as to award costs in this court against the plaintiff, one of the respondents, and Eisert, the other respondent, as provided for by the order of this court. It is not proposed to hold Eisert responsible for the costs of the trial in Trial Term, but only the costs imposed by this court on the appeal in which he appeared as respondent and sought to retain the benefit of a judgment to which he was not entitled.

p. 70

The order appealed from should be reversed, with ten dollars costs and ■'disbursements, and the motion granted, with ten dollars costs.

O’Brien, P. J., McLaughlin, Clarke and Houghton, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs. Order filed.