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Levine v. Klein

122 N.Y.S. 396 Court N.Y. City Ct. English

Delivered by *397 FINELITE, J.

Contents

Majority

p. 396
(66 Misc. Rep. 571.)
LEVINE v. KLEIN.
(City Court of New York, Special Term.
March, 1910.)

Headnote

1. Costs (§ 243[1] )—Appeal—Cost to Abide Event.
The first trial resulted in a judgment in favor of plaintiff, which on. appeal was reversed, and a new trial ordered, with costs to defendant to abide the event. The second trial resulted in a dismissal of the complaint and a judgment for defendant, from which plaintiff appealed, which resulted in a reversal of the judgment in favor of plaintiff to abide-the event. The third trial resulted in a verdict in favor of plaintiff, on which a judgment was rendered in his favor. Held that, plaintiff being-the successful party, he was entitled to the trial fee of $30 for each trial.
[Ed. Note.—For other cases, see Costs, Dec. Dig. § 243.[1] ]
2. Costs (§ 254[1] )—Items of Cost.
Under Code Civ. Proc. § 3251, subd. 3, relating to costs, $20 is to be-allowed for making and serving a case, and when of more than 50 folios $10 in addition thereto, and for making and serving amendments to a case $20.
[Ed. Note.—For other eases, see Costs, Cent. Dig. §§ 962-966, 974-977 Dec. Dig. § 254.[1] ]
3. Costs (§§ 174, 175, 258[1] )—Disbursements.
The successful party is entitled to actual disbursements expended on-the trial, such as $1 for entering judgment, $9 for three jury fees, and. an item for printing points.
[Ed. Note.—For other cases, see Costs, Cent. Dig. §§ 691-700; Dec. Dig. §'§ 174, 175, 258.[1] ]
Action by Beckie Levine against Philip Klein.
Motion by defendant to retax costs denied.
See, also, 65 Misc. Rep. 498 , 120 N. Y. Supp. 196 .
Joseph Gans, for plaintiff.
Schlesinger & Schlesinger, for defendant.

This is a motion why a. retaxation of costs should not be ordered by the court. Upon taxation of the costs by the clerk of this court, the defendant objected to the following items: Trial fee, issue of fact, three trials, $90; making and serving amendments to •case, $20; making and serving of more than 50 folios, $10; proceedings before and after new trial, twice, $50; clerk’s fee on entering judgment, twice, $1; jury fees, ’3 trials, $9; paid printing points, $18.50. _

_ It appears from the papers that there were three trials of this action. The first trial resulted in a judgment in favor of the plaintiff, which on appeal was reversed, and a new trial ordered, with costs to the appellant (defendant) to abide the event. The second trial resulted in a •dismissal of the complaint, and a judgment in favor of the defendant, from which judgment the plaintiff appealed, and resulted in a reversal of the judgment in favor of the appellant (plaintiff) to abide the event. The third trial resulted in a verdict in favor of the plaintiff, on which verdict a judgment was rendered in favor of the plaintiff.

The plaintiff, being the successful party, is entitled to the trial fee of $30 for each trial had, even though the prior trials were abortive. Hudson v. Erie R. R., 57 App. Div. 98 , 68 N. Y. Supp. 28 ; R. N. Gilmour Mfg. Co. v. Stetler et al., 58 Misc. Rep. 3611 , 109 N. Y. Supp. 667 . Where the costs in the appellate court on the reversal of a judgment are given to either party, as the case may be, to abide the event, and that party is finally unsuccessful, the successful party is entitled to tax the costs on the trial that was reversed. Belt v. Am. Cent. In. Co., 33 App. Div. 239 , 53 N. Y. Supp. 363 . And in this case the court held that a reversal, with costs to the appellant, who is again defeated, refers only to the costs in the Court of Appeals, and the respondent is entitled to the costs of both trials. Mott v. Consumers’ Ice Co., 8 Daly, 244 .

The two items of $25 each for proceedings before and after granting new trial were properly allowed. Code Civ. Proc. § 3251, subd. 3; Mossein v. Empire State Surety Co., 117 App. Div. 782 , 102 N. Y. Supp. 1012 . For making and serving case of more than 50 folios, $10 must be allowed. For making and serving amendments to case, $20 must be allowed. Code Civ. Proc. § 3251, subd. 3. The plaintiff is entitled to actual disbursements expended on the trial of this action, being the successful party—such as $1 for entering judgment, $9 for three jury fees, and the item for printing points.

Motion for retaxation must therefore be denied. Settle order on one day’s notice.

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