Hyperlawhypertext legal database Koon & Horton v. Thurman 2 Hill & Den. 357

← Cases

Koon & Horton v. Thurman

2 Hill & Den. 357 Court N.Y. Sup. Ct. English

Delivered by Co wen, J.

Contents

Majority

p. 357
Koon & Horton vs. Thurman and others.

Headnote

Where, on motion of the plaintiff upon a bill of exceptions, a new trial was granted with costs to abide the event, and on the second trial the defendant obtained a. verdict; held, that the latter was entitled to his costs of opposing the motion for a new trial.
The case of The People ex ret Manning v. New-York C. P. ( 13 Wend. 649 ,) adverted to and explained.
Retaxation of costs. The plaintiffs having been non-suited at the trial, made a motion to this court upon a bill of exceptions, that the nonsuit be set aside and for a new
p. 358
trial. The motion was granted, the costs to abide the event. On the second trial the defendants obtained a verdict, and, on taxation of costs, insisted that they were entitled to have the costs of proposing amendments to the bill of exceptions and other costs of opposing the motion for a new trial, taxed as a part of their general bill. This was refused by the taxing officer, and
J B. Willard, for the defendants,
now moved for a re-taxation.
D. Wright, contra.

By the Court,

It does not appear to have been denied on the taxation that the costs were, on our granting the new trial, order to abide the event. The taxing officer put his disallowance on the ground that we had not awarded costs to the defendants. The rule is now produced, whence it appears that they were to abide the event. Such a rule I miderstand to mean, the costs of the motion for a new trial as well as the costs of the trial itself.

It is supposed that the dictum, in The People, ex rel. Manning, v. New- York C. P. ( 13 Wend. 649 , 655,) conflicts with this construction of the rule. The point does not appear to have been involved in that case; and beside, the dictum was applied to costs on error in a court other than that where they were allowed. The remark in that case, that a party is never entitled to costs of a trial or motion in which he is unsuccessful, (p. 655,) must be taken with many qualifications; and one is, I .think, where the costs of opposing a motion for a new trial are ordered to abide the event, and the party so opposing succeeds in the trial ordered.

Motion granted.

Cases cited