Thomas v. Evans — 20 N.Y. St. Rep. 884

Majority

p. 884

Ellis R. Thomas et al., App’lts, v. Thomas J. Evans et al., Resp’ts.

(Supreme Court, General Term, Second Department,

Filed December 10, 1888.)

Headnote

1. Costs—In equity action—Discretion of court—Second trial.

In an equity case judgment was awarded to plaintiffs, with costs. 'The-general term affirmed the judgment, with costs. The court of appeals, reversed the judgment and ordered a new trial, with costs to abide the event. On the new trial judgment was rendered for defendant, with costs. Held, that the cause being in equity, costs were in the discretion of the court, and within that discretion the trial judge might allow defendants costs of the first trial.

3. Same—Appeal—Meaning of “ costs to abide event.”

Upon appeal to the court of appeals, where that court reverses a judgment and orders a new trial, “ with costs to abide event,” it only means, that the party finally prevailing is entitled to his costs in that court, and not that he must recover costs for all the proceedings in the case.

Appeal from an order taxing the costs in this action. It is an equity case where costs are in the discretion .of the-court. The case has been to the court of appeals, and a - ' new trial has been had according to the direction of that-

p. 885

court. At the first trial at the special term judgment was awarded to the plaintiffs, with costs. The general term affirmed the judgment, with costs. An appeal to the-court of appeals resulted in a new trial being ordered, “with costs to abide the event.” 8 ¡N. Y. State Rep., 647. On the new trial judgment was rendered for defendant, with costs. The clerk taxed costs of the first trial, costs of the general term, costs of the second trial and of, the court of appeals in favor of defendant. On appeal from the clerk's taxation to the special term the court disallowed the costs and disbursements of the general term, but allowed costs of the first trial, of the court of appeals, and of the second trial.

The plaintiff concedes the defendant’s right to tax the costs of the court of appeals and of the second trial, but appeals from the allowance of the costs of the first trial.

The defendant takes a cross-appeal.

J. H. K. Blauvelt, for pl’ffs; George H. Starr, for def’ts. j

The case in 84 N. Y., 669 , is decisive that the party which has at .last prevailed is entitled to his costs, in the court of appeals.

But we do not understand that case to hold that a decis-, ion of the court of appeals reversing a judgment and order-; ing a new trial “ with costs to -abide the event,” necessarily ¡ imports that the party finally prevailing must recover costs for all the proceedings in the cause. 1

Full effect is given to the language of the appellate court by giving to the party finally prevailing his costs in the court of appeals.

• We think the judge who tried the cause at special term had authority to give the party now prevailing costs of the first trial at special term. The cause is in equity and costs are in discretion.

As to the costs of the appeals to the general term, we have held the right to those costs was not conferred by the decision of the court of appeals. They have not been awarded to the party now prevailing by the general term; and the special term judge who must be considered best qualified to explain his own decision, if it be ambiguous, expressly decides that they were not conferred by him.

From these views it follows that the order appealed from must be affirmed. ¡No costs.

Barnard, P. J., and Dykman, J., concur.