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Berrent v. Simpson

115 N.Y.S. 693 Court N.Y. App. Term Decision date 1909-03-15 English

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p. 693
BERRENT v. SIMPSON.
(Supreme Court, Appellate Term.
March 15, 1909.)

Headnote

Costs (§ 149[1] )—New Trial—Trial Costs.
Where a party, successful in the first trial, is also successful on the second trial, after reversal of the judgment, with costs to appellant to abide the event, he is not entitled to tax two items of costs, before and after notice of trial.
[Ed. Note.—For other cases, see Costs, Cent. Dig. § 576; Dec. Dig. § 149.*]
On rehearing. Former opinion overruled, and order appealed from affirmed.
For former opinion, see 113 N. Y. Supp., 1065 .

Further consideration of this appeal upon re-argument leads to the view that the items of costs in dispute were not

p. 694
taxable and that the order should be affirmed. Upon a new trial after reversal, the prevailing party, who is entitled to costs of both trials, cannot tax two items of costs, before and after notice of trial. The question was considered in Seifter v. Railroad Co., 53 App. Div. 443 , 446, 65 N. Y. S.upp. 1123, and the court gave effect to the language employed in subdivisions 1 and 3 of section 3251 of the Code of Civil Procedure, "for all proceedings” before and after notice of trial, in such wise as'to limit the items to one taxation in the action, notwithstanding that there might be successive trials.

It is true that in the case cited there had been a mistrial; but the general subject was necessarily considered, and the meaning of the words “for all proceedings” was taken to be emphasized by the provision in subdivision 3 for $25 costs “for all proceedings after the granting of and before á new trial.” The case of Bank of Mobile Insurance Co., 8 N. Y. Civ. Proc. R. 212 , approved in the Seifter Case, is authority for the proposition that costs before and after notice of trial are not taxable twice under any circumstances; and while the contrary was held in Gilroy v. Badger, 28 Misc. Rep. 143 , 58 N. Y. Supp. 1106 , cited for the appellant, this last case wafe treated by this court as overruled by the Seifter Case in Hakonson v. Metropolitan St. Ry. Co., 40 Misc. Rep. 182 , 81 N. Y. Supp. 662 . One term fee only is taxable in the City Court (Code Civ. Proc. § 3251, subd. 3), and, as stated, costs before and after notice of trial must be limited to a single taxation.

The order should be affirmed, with $10 costs and disbursements.

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