House v. Lockwood — 16 N.Y. St. Rep. 13

Majority

p. 13

William M. House, App’lt, v. John L. Lockwood et al., Resp’ts.

(Supreme Court, General Term, First Department,

Filed May 18, 1888.)

Headnote

1. Costs on appeal—When successful party not entitled to.

Upon the first trial of this action the complaint was dismissed, hut on an appeal from the judgment it was reversed and a new trial ordered.

p. 14

Upon the second trial the defendant again succeeded. Held, that the defendant was not entitled to include in his costs, the costs and disbursements on the appeal in which the plaintiff had proved successful. Following Durant v. Abendroth, 15 N. Y. State Rep., 342.

2. Same—Costs in equity action—Effect of direction of court.

The direction of the court giving costs in favor of a party in an equity action is equivalent to the statutory right securing costs to the successful party in legal actions.

Appeal from an order affirming the adjustment of costs made by the clerk.

Francis C. Barlow, for app’lt; Austen C. Fox for resp’ts.

The action was in equity for a strict foreclosure of a deed, alleged to have been a mortgage. Upon the first trial which took place, the complaint was dismissed, but on an appeal from the judgment it was reversed and a new trial ordered. Upon the second trial the defendant again succeeded, and as a part of his costs and disbursements allowed in the action, the clerk included the costs and disbursements on the appeal in which the plaintiff had proved successful. This he had no authority to do, and as the point has recently been considered and decided in Durant v. Abendroth (15 N. Y. State Rep., 342), all that is necessary now is to refer to the opinion in that case, for the reasons upon which these items should have been disallowed.

The clerk, also, adjusted in favor of the defendant, the costs and disbursements upon the first trial, and - that he was authorized to do by the decision which was made after the second trial of the action; for by that decision the complaint of the plaintiff was dismissed, with costs. The costs were in the discretion of the court before which the final trial took place, which discretion was exercised in the defendants’ favor, and as long as the judgment dismissing the complaint in that manner remains in force the defendant was entitled to have adjusted in his favor, all the costs in the action, excluding those incurred in the appeal, which were before disposed of by the order reversing the judgment and directing a new trial. The judgment to this extent is as conclusive against the plaintiff as any other direction or decision contained in it, and cannot be questioned or disregarded collaterally, as it would be if this direction for the allowance of costs, should be now modified or changed by this court.

The direction giving, costs, in favor of the defendant, is equivalent to the statutory right securing costs to the successful party in cases known as legal actions, and for that reason this part of the case, is, also, within the decision, which has just been referred to.

p. 15

So much of the order as included costs and disbursements on the appeal should be reversed, and such costs deducted from the adjustment made by the clerk, but as to the residue the order should be affirmed, without costs.