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Ireland v. Harlam

88 N.Y.S. 990 Court N.Y. App. Term Decision date 1904-06-23 English

Delivered by FREEDMAN, P. J.

Contents

Majority

p. 990
IRELAND v. HARLAM.
(Supreme Court, Appellate Term.
June 23, 1904.)

Headnote

1. Motion foe New Trial—Costs.
Where the order granting defendant’s motion for a new. trial • recited that the motion was made upon a case and exceptions duly made and settled, such recital was conclusive, and defendant, on his final success in the action, was entitled to costs for making and serving a case, under Code Civ. Proc. § 3251, providing that the successful party on a motion for a new trial on a case shall have costs, in the same sum as on appeal;
p. 991
and this is true though defendant also obtained leave to file a supplemental and amended answer, and was required, as a condition thereto, to pay the plaintiff the costs and disbursements of the action.
Appeal from City Court of New York, Special Term.
Action .by John B. Ireland against Edward M. Harlam. From an order refusing to. strike out certain costs taxed in defendant’s favor, plaintiff appeals. Affirmed.
Argued before FREEDMAN, P. J., and MacLEAN and SCOTT, JJ.
Julius D. Tobias, for appellant.
Joseph Rosenzweig, for respondent.

The record is quite incomplete and unsatisfactory, but it sufficiently appears that defendant’s motion for a new trial was made upon a case and exceptions duly made and settled, and the order granting the motion so recites. The case is thus brought within the decision of Atkinson v. Truesdell (Super. N. Y.) 7 N. Y. Supp. 801 ; and, upon defendant’s final success in the action, the costs allowed for malting and serving a case, before argument and for argument, were properly taxable under section 3351 of the Code. No different result is called for by reason of the fact that upon the said motion the defendant also obtained leave to file a supplemental and amended answer, and that, as a condition for granting the motion, he was required to pay to the plaintiff the costs and disbursements of the action as taxed in the judgment roll which he did pay.

The order should be affirmed, with costs and disbursements. All concur.