Union Trust Co. v. Whiton — 78 N.Y. 491

Majority

p. 491

The Union Trust Company, Respondent, v. Augustus S. Whiton, Appellant.

Headnote

^Plaintiff was nonsuited; on appeal a new trial was granted, costs to abide event. On the second trial defendant had a verdict, and the clerk taxed costs of appeal in his favor. On appeal from order of General Term, affirming an order of Special Term, directing a re-taxation and disallowing costs of appeal, held, as the appeal was from the construction by a General Term of its own order, which was in accordance with the construction of other similar orders, such interpretation would not be interfered with by this court. Appeal therefore dismissed.

(Argued October 14, 1879;

decided November 11, 1879.)

Appeal from order of the General Term of the Supreme Court, in the first judicial department, affirming an order of Special Term. (Reported below, 17 Hun, 573 .)

The nature of the Special Term order and the facts appear in the opinion.

jRobert F. Little, for appellant.

Costs having been •awarded to abide the event, without stating to which party, the one succeeding on the new trial is entitled to them. {Koon v. Thurman, 2 Hill, 357 ; Van Wyck v. Baker, 11 Hun, 309 ; Lottie v. Krakauer, Daily Register, Feb. 12, 1879; Mott v. Consumer’s Ice Co., 8 Weekly Digest, 145; Flynn v. Fq. L. Ass. Soc’y, 8 id., 395 .)

Rufus W. Beckham, for respondent.

When a new trial is ordered by the General Term, “ with costs to abide event,” it means costs of the appeal to the appellant, provided he succeeds in the action, but not in any case to the respondent, who was in error, and failed to maintain his nonsuit. (Sheridan v. Cenet, Brady, J., Sp. Term, Dec. 12, 1878, affirmed at General Term, Feb. 7, 1879; Lyddy v. Kenney, Barrett, J., Sp. Term, Feb. 11, 1879 ; Howell v. Van Sicler, 8 Hun, 524 .)

Plaintiff was nonsuited. On appeal a new trial was ordered, costs to abide the event. On the second

p. 492

trial defendant had a verdict. The clerk taxed costs of . appeal in favor of defendant, and an order was made at Special Term directing a re-taxation, and disallowing costs of appeal.

The General Term affirmed this order, and defendant appeals to this court. The appeal is from a construction by the General Term of its own order, which is in accordance with the construction of other similar orders, and we think such interpretation of its own order ought not to be interfered with by this court.

The appeal should be dismissed.

All concur. *

Appeal dismissed.