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Davis v. Reflex Camera Co.

114 A.D. 814 Court Second Department, Decision date 1906-07-24 English

Delivered by Jenks, J.

Contents

Majority

p. 814
Edward P. Davis, Appellant, v. The Reflex Camera Company, Respondent.
Second Department,
July 24, 1906.

Headnote

Costs — new trial with, costs to abide event —when taxable by plaintiff.
When a judgment for the plaintiff is reversed and a new trial granted, “ with costs to abide the event,” the plaintiff is entitled to tax the costs of the appeal if successful on the new trial.
It seems, however, that there is a difference when the costs are awarded to a specific party “ to abide the event.”
Appeal by the plaintiff, Edward P. Davis, from an order of the City Court of Yonkers, entered in the office of the clerk of said court on the 5th day of March, 1906.
p. 815
John H. Ferguson, for the appellant.
William Riley, for the respondent.

The appeal is from an order of the city judge of Yonkers retaxing costs on a judgment by striking out certain items taxed by the clerk and reducing the judgment accordingly. The plaintiff recovered a judgment upon a verdict; upon defendant’s appeal therefrom and from an order denying defendant’s motion for a new trial on the minutes we reversed the judgment and the order and ordered a new trial, “ costs to abide the event ” ( 105 App. Div. 96 ). On the second trial the plaintiff again recovered a judgment and thereupon the costs now objected to were taxed. The defendant does not challenge the propriety of the items, but contends that the plaintiff being unsuccessful on the appeal is not entitled to tax the costs thereof as the prevailing party upon the new trial.

The costs were “ to abide the event,” and the event is favorable to the plaintiff ; that is, he has succeeded in the trial, for there is in the eye of the law but one trial of this action, namely, that which has terminated in favor of the plaintiff. (Benjamin v. Ver Nooy, 168 N. Y. 578 at 583.)

We are of opinion that the taxation by the clerk was correct. (Koon v. Thurman, 2 Hill, 357 ; First Nat. Bank of Meadville v. Fourth Nat. Bank of N. Y., 84 N. Y. 469 ; Franey v. Smith, 126 id. 658, 660.)

There is, of course, a distinction between an award of costs in the terms of the judgment in this case and awards of “ costs to the appellant (or to the plaintiff or the defendant) to abide the event.” The order is reversed, with ten dollars costs and disbursements.

Hirschberg, P. J., Woodward, Hooker and Gaynor, JJ., concurred.

Order reversed, with ten dollars costs and disbursements. -

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