Majority
p. 1140(19 Misc. Rep. 428.) ELLIOTT et al. v. LUENGENE. (City Court of New York, General Term. February 23, 1897.) Argued before VAN WYCK, C. J., and O’DWYER, J.
Headnote
Costs—Reveesal, with “Costs to Abide Event.”Where a judgment for plaintiff is reversed on appeal, with costs to defendant “to abide the event,” plaintiff cannot recover his costs of the first trial on recovering judgment in the second trial. Cash-Car Co. v. Reinhardt (Com. Pi.) 26 N. Y. Supp. 746 , followed.
Appeal from special term.
Action by Richard W. Elliott and another against Charles H. Luengene. Judgment for plaintiffs. From an order granting defendant’s motion for a review of the clerk’s taxation of costs, and striking from plaintiffs’ bill of costs the disbursements on the first trial, plaintiffs appeal. Affirmed.
A. Kling, for appellants.
Jacob Fromme, for respondent.
The action was tried, and resulted in a judgment in favor of the plaintiffs, and upon appeal therefrom that judgment was reversed, and a new. trial ordered, “with costs to the appellant to abide the event.” A new trial was had, and again resulted in favor of the plaintiffs. The only question presented for our de
p. 1141
termination is one relating to the costs awarded by the decision of the general term upon the appeal from the judgment on the first trial. The plaintiffs contend that, having succeeded in the action, they are entitled to tax the costs of the first trial, and insist that the “costs to the appellant to abide the event” upon the reversal of the judgment on the first trial relate to the costs of the appeal only. It was so held in Howell v. Van Siclen, 8 Hun, 524 , affirmed in the court of appeals ( 70 N. Y. 595 ); and we would follow the decision in that case were it not for the fact that the court of common pleas, at general term (our appellate tribunal), in Cash-Car Co. v. Reinhardt, 26 N. Y. Supp. 746 , have laid down a different rule. It was there held that an order reversing a judgment, and directing a new trial, “with costs to the appellant to abide the event,” included the costs in the trial court, as well as the costs upon appeal, and, where the respondent prevails on the new trial, the costs mentioned in the order of reversal cannot be taxed.
We are compelled to follow the decision of our appellate court, and, upon authority of the case cited, the order appealed from should be affirmed, with costs.