Majority
p. 519McGRATH v. ALGER. (Supreme Court, Appellate Division, Second Department. April 18, 1899.) Argued before GOODRICH, P. J., and CULLEN, BARTLETT, HATCH, and WOODWARD, JJ.
Headnote
Discovert—Costs.It is error, in granting defendant an order of discovery, to tax costs absolutely on plaintiff, since they should abide the event of the action.
Appeal from special term.
Action by Thomas M. McGrath against William G. Alger, as executor of the will of Cyrus D. Alger, deceased. From an order granting defendant a discovery, plaintiff appeals.
Reversed.
William G. M. Phlippeau, for appellant
Frederic A. Ward (J. Fred Kernochan, on the brief), for respondent.
Pending the appeal from the order of the special term granting an inspection of certain books and papers, and before compliance with the order, the action has been tried, and has resulted in a judgment in favor of the plaintiff. We should not entertain the appeal at all, were it not that the order below imposed $10 costs absolutely on the plaintiff. This should not have been done. The costs awarded to the defendant should have been made to abide the event of the action. Under the circumstances, we think the proper course
p. 520
to pursue now is to reverse the order of the special term, without costs to either party, and without prejudice to a renewal of the motion in case a new trial of the action should be granted.