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Marx v. McCloud

21 N.Y. St. Rep. 957 Court N.Y. Gen. Term Decision date 1888-12-10 English

Delivered by Dykman, J.

Contents

Majority

p. 957
Matthew Marx, App’lt, v. Elizabeth McCloud, Resp’t.
(Supreme Court, General Term, Second Department,
Filed December 10, 1888.)

Headnote

Costs—Appeal—To abide result op mew trial.
Where, on an appeal from the judgment of a county court, the general term awards a new trial, with costs to the appellant to abide the event, if the result is unfavorable to him, he can recover no costs of the appeal.
Appeal from an order of the Queens county courj; striking out plaintiff’s costs on appeal to the general term, and affirming re-taxation of defendant’s costs at $127.28.
M. Marx, for app’lt; L. M. Manley, for resp’t.

This is an appeal from the order of the-county judge of Queens county, striking out the costs of the plaintiff on appeal to the general term of the supreme-court, and from that part of the order affirming the re-taxation of the defendant’s costs at $127.28. The judgment of the county court of Queens county, rendered in this action originally, was reversed on appeal to the general term of the supreme court, and a new trial was granted, with costs to the appellant to abide the event, and thereafter a new trial was had which resulted in a verdict for the defendant, so that the appellant was not entitled to the costs of the appeal to the general term of the supreme court, because he did not succeed finally in the action, and such costs were properly disallowed. That disposes of this appeal.

Had the plaintiff succeeded on the new trial, he would then have been entitled to the costs of the appeal, but the-event of both trials having been unfavorable to him, and. favorable to the defendant, he can recover no costs of the-appeal, such costs being in terms to the appellant to abide-the event.

The action of the clerk in refusing to tax the costs of the general term - in favor of the plaintiff was proper, and the-term fees having been stricken out by consent of the defendant, the order seems to be proper and should be affirmed, with ten dollars costs and disbursements.

All concur.