Rozelle v. Andrews — 6 N.Y. St. Rep. 730

Majority

p. 730

Harry Rozelle et al, Com’rs, etc., v. Eliza Andrews.

(Supreme Court, General Term, Second Department,

Filed February 15, 1887.)

Headnote

Restitution—Of costs paid under decision subsequently reversed.

A judgment, without costs, having been obtained by this plaintiff was affirmed, with costs, by the general term, and the costs adjusted. Upon an appeal to the court of appeals, the judgment was reversed and the complaint dismissed, with costs. Held, that the costs paid in compliance with the judgment of the court below should be restored.

Upon the trial of this action judgment was awarded to the plaintiffs without costs, and the judgment was affirmed by the general term, with costs, which were adjusted at eighty dollars and paid by the defendant.

Then the defendant appealed to the court of appeals where the judgment was reversed and the complaint dismissed, with costs.

Now the defendant desires the restitution of the eighty dollars, and it is a proper case for such restoration. The money was paid in obedience to an erroneous decision of the court which now has been reversed. There is, therefore, no justification for its retention, and it should be restored.

The motion should be granted, with ten dollars costs. Pratt, J., concurs; Barnard, P. J., not sitting.