Feltenstein v. Ernst — 104 N.Y.S. 423

Majority

p. 423

(54 Misc. 223)

FELTENSTEIN v. ERNST et al.

(Supreme Court, Appellate Term.

May 16, 1907.)

Headnote

Costs—Reversal and Judgment Absolute on Appeal.

Where the Appellate Term reversed a judgment of the City Court for plaintiff, and ordered a new trial, “with costs * * * to abide the event,” and then allowed appeal to the Appellate Division on a stipulation that, if it affirm the judgment of the Appellate Term, there should be a judgment absolute for defendants, and the Appellate Division affirmed the determination of the Appellate Term, and rendered judgment absolute for defendants, and such judgment was by order of the City Court made its judgment, defendants are entitled to the costs on appeal to the Appellate Term, costs on appeal to the Appellate Division, and costs of one trial and disbursements.

Appeal from City Court of New York, Special Term.

Action by Sidonia Eeltenstein against Meriyz L. Ernst and another. Erom an order denying a motion for retaxation of costs, plaintiff appeals.

Affirmed.

Argued before GILDERSLEEVE, P. J., and SEABURY and BRADY, JJ.

Eeltenstein & Rosenstein, for appellant.

Arnstein & Levy (Alexander Pfeiffer, of counsel), for respondents.

This action was brought in the City Court, and the plaintiff recovered a judgment. Upon appeal this court reversed the judgment, and ordered a new trial, “with costs to the appellant to abide the event.” 97 N. Y. Supp. 376 . By permission of this court the plaintiff was allowed to appeal to the Appellate Division, upon filing a stipulation to the effect that, if the Appellate Division affirmed the judgment of the Appellate Term, judgment absolute should be rendered and entered in favor of the defendants. The Appellate Division affirmed the determination of this court and rendered judgment absolute in favor of the defendants, and the judgment of the Appellate Division was, by order of the City Court, made the judgment of that court. The defendants thereupon taxed their costs in the City Court, as follows: The costs on appeal to the Appellate Term, costs on appeal to the Appellate Division, and the costs of one trial and disbursements. The plaintiff made a motion to disallow the costs before and after notice of trial and a trial and term fee, and from the order denying such motion this appeal is taken.'

We think the costs were properly taxed. There is no question that, when a judgment is reversed, with costs to abide the event, it means that such costs are those of the appeal only; but where the appellant has been successful, in the lower court upon the new trial, or upon a further appeal, where judgment absolute has been rendered in his favor, the judgment of the appellate court having been made a judg

p. 424

ment of the lower court, he becomes entitled to the costs of one trial. Suppose the Appellate Term had reversed the judgment absolutely, with costs; could there be any question about the right of the appellant to return to the lower court and tax the costs of the trial in that court? Certainly not. And that is the effect of the decision of the Appellate Division in the case at bar. In Schoonmaker v. Bonnie, 51 Hun, 34 , 3 N. Y. Supp. 492 , the action was to compel specific performance. The General Term of the Supreme Court reversed the judgment as to two defendants, with costs. The question of the right of these defendants to tax the costs of the trial having arisen, the court said:

“Had the trial court awarded a judgment dismissing the complaint as to these women, without costs, the affirmance by the General Term oí the judgment would continue the judgment as it stood at the time the appeal was taken, and the words ‘with costs’ in that event would only apply to proceedings thereafter taken; but in the case under consideration the General Term reversed the judgment awarded by the trial court, and in effect ordered a final judgment dismissing the complaint, and then awarded costs, which under such circumstances includes all the costs taxable as such in the Supreme Court, being those of the trial court and the General Term.”

None of the cases cited by appellant are opposed to this position.

Order affirmed, with costs and disbursements. All concur.