Thomas et al. v. Evans et al.(Supreme Court, General Term, Second Department.Headnote
",1. Costs—lx Equity—Allowance on Second Trial—Discretion of Court.In an equity cause, judgment was for plaintiffs, with costs. The general term affirmed the judgment, with costs. The court of appeals reversed the judgment and ordered a new trial, with costs to abide the event. On the new trial judgment was for defendants. Held, that it was within the discretion of the trial judge to allow defendants costs of the first trial.
.3. Same—Appeal—“Costs to Abide Event.”
When the court of appeals reverses a judgment, and orders a new trial, “with costs to abide the event, ” it means only that the party finally prevailing is entitled to his costs in that court, and not that he must recover costs for all the pro•ceedings in the case.
-Appeal from special term, Kings county.
This is an appeal from an order taxing costs in the action. At the first “trial judgment was awarded to the plaintiffs, with costs, which was affirmed by the general term, with costs. Defendants appealed to the court of appeals, where the judgment was reversed, and a new trial ordered, “with costs to abide the event. ” 12 H. B.Itep. 571. On the second trial judgment was rendered for defendants, with costs. The clerk taxed the costs of all the trials and appeals in favor of defendants, but on appeal |'om his taxation the special term judge disallowed the costs of the appeal to general term, and allowed defendants the costs of both trials and of the court of appeals. Plaintiffs ap■peal from the allowance of costs of the first trial. Defendants file a eross.appeal.
Argued before Barnard, P. J., and Dykman and Pratt, JJ.J". H. K. Blauvelt, for plaintiffs. George H. Starr, for defendants.
The case in 84 N. Y. 469 , (First Nat. Bank v. Fourth Nat. Bank,) is decisive that the party which has at last prevailed is entitled to his-costs in the court of appeals. But we do not understand that case to hold, that a decision of the court of appeals reversing a judgment and ordering a. new trial, “ with costs to abide the event,” necessarily imports that the party finally prevailing must recover costs for all the proceedings in the cause. Full effect is given to the language of the appellate court by giving to the-party finally prevailing his costs in the court of appeals. We think the judge-who tried the cause at'special term had authority to give the party now prevailing costs of the first trial at special term. The cause is in equity, and-, costs are in discretion. As to the costs of the appeals to the general term. We have held the right to those costs was not conferred by the decision of the-court of appeals; they have not been awarded to the party now prevailing by the general term; and the special term judge, who must-be considered best qualified to explain his own decision, if.it be ambiguous, expressly decides that they were not conferred by him. From these views it follows that the-order appealed from must be affirmed. No costs. All concur.