Myers v. Fox — 113 N.Y.S. 116

Majority

p. 116

MYERS v. FOX.

(Supreme Court, Appellate Division, Second Department.

November 27, 1908.)

Headnote

New Trial (§ 161^[1] )—Conditions—Costs.

Under an order setting aside a verdict and granting a new trial on condition that the party against whom the' verdict was had “pay the costs of the trial already 'had and the disbursements to the date of the order,” it was error to include in the costs taxed, the costs before notice of trial and four term fees; the purpose of the condition being to reimburse the successful party at the trial for disbursements and services performed which were rendered futile by the order setting aside the verdict.

[Ed. Note.—For other cases, see New Trial, Dec. Dig. § 161.*]

Appeal from Special Term, Kings County.

Action by Tina Myers against Andreas Fox, as executor of the will of Franziska ICnoth, deceased. A verdict for plaintiff having been set aside .on condition that defendant pay the costs of trial already had and disbursements to the date of the order, defendant appeals from an order denying a motion for retaxation of costs.

'Order reversed, and motion granted.

Argued before WOODWARD, JENKS, GAYNOR, RICH, and MILLER, JJ.

Katz & Sommerich, for appellant.

Louis Weinberger (Jacob Weinberger, on the brief), for respondent.

In this case a verdict for the plaintiff was set aside and a new trial was granted on condition that the defendant “pay the costs of the trial already had and the disbursements to the date of the order.”

On this appeal we are required to construe the terms imposed as the condition of granting the new trial. The clerk taxed all of the costs of the action to the date of the order, including the costs before notice of trial, $15, and four term fees, $40, and the order appealed from denied a motion for retaxation. The purpose of the condition is to reimburse the successful party at the trial for the disbursements incurred and the services performed which are rendered futile by the order setting aside the verdict. Had it been intended to allow all costs of the action, the order would have so stat.ed. The costs after notice of trial, $15, and the .trial fee, $30, are allowed for services which will have to be performed again, and are the costs intended to be imposed by the order. The items of $15, costs before notice of trial, and $40, term fees, should be disallowed.

The order, is reversed, with $10 costs and disbursements, and the motion for retaxation in accordance herewith is granted, with $10 costs. All concur.