Slocum v. Lansing — 3 Denio 259

Majority

p. 259

Slocum vs. Lansing.

Headnote

Where a defendant paid the costs of the circuit and of the motion, upon obtaining a new trial on payment of costs, and afterwards had judgment as in case of nonsuit in his favor; held that he was not entitled to tax his own costs of the application for a new trial.

Costs. The cause was tried in March, 1839, when the plaintiff obtained a verdict. The defendant made a case, and obtained a new trial, on payment of costs ; and he paid the plaintiff’s costs of the circuit at which the cause was tried, and the costs of opposing the motion for a new trial. The defendant afterwards obtained a judgment as in case of nonsuit, and in his bill of costs charged and had taxed all his own costs on the application for a new trial, amounting to $107,81.

S. Stevens, for the plaintiff,

moved for a relaxation of the costs, and that the sum of $107,81 be deducted from the bill as taxed.

M. T. Reynolds, for the defendant.

As the defendant was required it ,»sts, the granting uf the new trial must have been considered i £T??~ of favor rather than of strict right; and the defendant cannot be entitled to t le costs of his proceedings to obtain the favor.^[1]

Motion granted.

(a) (a) So where a plaintiff pays costs of a circuit for not proceeding to trial pursuant to notice, and afterwards recovers in the suit, he cannot tax his own costs of that *260 circuit. (Linacre v. Lush, 3 Wend. 305 .) But where a new trial is granted at the instance of the plaintiff, the costs to abide the result, and the defendant recovers, he is entitled to his costs of opposing the motion for a new trial. (Coon v. Thurman, 2 Hill, 357 .)