McEntyre v. Tucker — 61 N.Y.S. 257

Majority

p. 257

McENTYRE v. TUCKER.

(Supreme Court, Appellate Division, First Department.

December 8, 1899.)

Headnote

Appeal from taxation of costs.

For former opinion, see 58 N. Y. Supp. 146 .

Reargued before VAN BRUNT, P. J., and McLAUGHLIN, BARRETT, RUMSEY, and INGRAHAM, JJ.

Arthur J. Baldwin, for appellant.

Alfred B. Cruikshank, for respondent.

Our order of the 19th day of May, 1899, gave the defendant all the costs of the action subsequent to the service of the original complaint. It also gave him the costs and disbursements of the appeal, where such costs were awarded to him to abide the event. This was a recognition of the fact that upon the first appeal, namely, the plaintiff’s appeal to the general term of the former court of common pleas, costs were not in terms awarded to the defendant to abide the event. It was not the intention to require the plaintiff to pay the costs of that first appeal, where he was successful; and the order was settled, as it reads, to limit the appeal costs allowed to those awarded by us to the defendant (to abide the event) upon the second appeal. There was no intention, however, to deprive the defendant of the general costs of the cause either before the first judgment or since.

The order appealed from should therefore be modified by disallowing the costs and disbursements of the first appeal, and as so modified affirmed, without costs.