Majority
p. 172City Court. Special Term July, 1885. BANNERMAN against QUACKENBUSH et al.
Headnote
Where the defendant is defeated at the trial, and succeeds upon-, appeal in having the judgment reversed, with costs “ to the appellant ” to abide the event, and the plaintiff succeeds upon the new trial, he cannot tax in his favor the costs upon the appeal.Where the general term of the city court affirms a judgment in favor of the plaintiff, with costs, and the common pleas reverse the judgment and order a new trial, with costs “ to .the appellant ” to abide
p. 173
the event, the plaintiff (respondent), in case he succeeds upon the new trial, cannot tax the costs either of the city •court general term or the common pleas general term. The order of the general term affirming the judgment “ with costs ” having been reversed, “ its entire effect was wiped out” (Murtha v. Curley, 3 Civ. Pro. 266; 92 N. Y. 359 ). The plaintiff has succeeded upon the new trial, and the clerk has taxed in his favor the costs of the two general terms aforesaid.
The taxation will be reversed as to the costs of the two general terms, aggregating $120, and the disbursements incurred thereon, amounting to $6.50. These items, amounting to $126.50, will be deducted from $319.75, the bill as taxed, leaving $192.50 as the proper amount. At this sum the taxation will be affirmed.
Cases cited
- Murtha v. Curley 92 N. Y. 359 p. 173