McWhirter v. Bowen — 99 N.Y.S. 560

Majority

p. 560

McWHIRTER v. BOWEN et al.

(Supreme Court, Appellate Division, First Department.

June 15, 1906.)

Headnote

Costs—Appeal—Pasties—Liability fob Costs.

Where defendant B. was awarded substantial relief by the judgment, though he had not answered or taken any part in the trial, but he appeared by counsel as a respondent on appeal and sought to sustain the judgment in his favor, and the judgment was modified by striking out such relief, E. was liable for costs on the appeal.

[Ed. Note.—For cases in point, see vol. 33, Cent. Dig. Costs, § 924.]

Appeal from Special Term, New York County.

Action by William H. McWhirter against Abner T. Bowen and others. From an order denying defendants’ motion to correct and amend the judgment entered on remittitur from the Appellate Division, defendants appeal.

Reversed.

See 81 N. Y. Supp. 747 , 93 N. Y. Supp. 1039 .

Argued before O’BRIEN, P. J., and McLAUGHLIN, INGRAHAM, CLARKE, and HOUGHTON, JJ.

H. B. Johnson, for appellants.

James M. Fisk, for respondent.

I think this motion should have been granted. The defendant Eisert was awarded substantial relief by the judgment, although he had not answered in the action and took no part in the trial. He, however, appeared by counsel as a respondent upon the appeal and sought to sustain the judgment in his favor. Upon the appeal, the decision of this court was against him and an order was entered modifying the judgment by striking out the clause in his favor.

This order, after reciting that counsel appeared “for said plaintiff and for said defendant Eisert, respondents,” modified the judgment and further ordered that, as so modified, the judgment “is hereby affirmed, with costs to the appellants against the respondents.” Whether or not the defendant Eisert appeared in the court below or answered, is not material as to the responsibility for the costs of the appeal. He did appear in this court as a respondent and insisted that the clauses of the judgment which were in his favor should be retained in the judgment, and he be awarded the relief that that judgment gave him. This court held that he was not entitled to have the relief awarded to him by the judgment, and modified it, and gave costs against him on the appeal. The motion below was to modify the judgment entered upon the remittitur from this court, so as to award costs in this court against the plaintiff, one of the respondents, and Eisert, the other respondent, as provided for by the order of this court. It is not proposed to hold Eisert responsible for the costs of the trial in Trial Term, but only the costs imposed by this court on the appeal in which he appeared as respondent and sought to retain the benefit of a judgment to which he was not entitled.

The order appealed from should be reversed, with $10 costs and disbursements, and the motion granted, with $10 costs. All concur.