Koeppel v. Koeppel — 98 N.Y.S. 215

Majority

p. 215

(50 Misc. Rep. 619)

KOEPPEL v. KOEPPEL et al.

(Supreme Court, Appellate Term.

March 26, 1906.)

Headnote

Costs — Motion for New Trial — Case Made.

A printed ease, stating that a motion for a new trial was made on exceptions taken at the trial and containing a memorandum: “All amendments, except the twenty-fifth amendment, are allowed. The twenty-fifth amendment is disallowed. Case settled and filed April 8, 1905” — shows that the motion was made on the case made and settled, so that the successful party is entitled to full costs.

p. 216

Appeal from City Court of New York, Special Term.

Action by Fishel Koeppel against Mendel Koeppel and another. From an order relating to costs, plaintiff appeals.-

Reversed.

See 95 N. Y. Supp. 812 .

Argued before SCOTT, P. J., and O’GORMAN and NEWBURGER, JJ.

Max Schleimer, for appellant.

Steuer & Hoffman, for respondents.

An examination of the record upon the former appeal to this court shows that this was an appeal from an order granting a new trial upon a case made and settled. The printed case on page 4 shows that the motion for a new trial was made upon the exceptions taken at the trial, while on page 58 of the same case appears this memorandum :•

“All amendments, except the twenty-fifth amendment, are allowed. The twenty-fifth amendment is disallowed. Case settled and filed April 8, 1905. J. H. McC., J. C. C.”

It is apparent, therefore* that the motion was made upon the case, and it has been repeatedly held that upon such a motion the successful party is entitled to full costs. See Reid v. Gaedeke, 38 App. Div. 107 , 57 N. Y. Supp. 414 ; Ireland v. Harlam (Sup.) 88 N. Y. Supp. 990 . The judge below erred in holding that the plaintiff was only entitled to $10 costs.

The order appealed from, therefore, must be reversed, with costs and disbursements, and the bill of costs is hereby remitted for retaxation.

All concur.

Cases cited

Reid v. Gaedeke 38 App. Div. 107 N.Y. App. Div. 1899-03-10 p. 216