New v. Anthony — 11 N.Y. Sup. Ct. 52

Majority

p. 52

ABRAHAM NEW, Respondent, v. GEORGE ANTHONY and another, Appellants.

Headnote

Inquest—when order opening, directs costs to abide event — effect of such order when less than fifty doUwi's is recov&t'ed.

When an order opening an inquest directs that the costs of the inquest, and ten dollars costs of the motion for such order, abide the event, and upon the final trial, the claim being one which might have been sued upon in the justice’s court, the plaintiff recovers less than fifty dollars, he is not entitled to such costs.

Appeal from an order directing' a readjustment of plaintiff’s costs.

Henry Whittaker, Jr., for the appellants.

E. Goldsmith, for the respondent.

The plaintiff in this action recovered a judgment on its trial as an inquest. That, on motion, was vacated, with ten dollars costs to the plaintiff,' and .the costs of the inquest were ordered to abide the event. Hpon the final trial had, the plaintiff recovered less'than fifty dollars; and, as the claim was one which might have been sued and tried in the court of a justice of the peace, within the signification of those terms as they are used in the provisions of the -Code concerning costs, the defendants, and'not the plain

p. 53

tiff, were entitled to their costs in the action. They made no claim to the costs of the motion, or of the inquest taken. But the plaintiff claimed that those costs should be allowed to him, because they were made, by the terms of the order, to abide the event of the action, in which he finally recovered a verdict for twenty-four dollars. The order itself gave the plaintiff merely a contingent right to those costs, dependent upon the result of the litigation. And he could only become entitled to recover them by securing such a result as would be lawfully followed by the recovery of costs. As the order did not give him the costs as the result of any recovery in his favor, it must have contemplated -such a degree of success as would be attended with the right to costs under the provisions of the law; and that required a recovery of the sum of at least fifty dollars. The law did not interpose for that purpose in his behalf, upon the recovery of anything less than that amount, in tin action of this description.^[3] And where that proves to be the case, the provision is absolute, that the costs shall be allowed to the defendant.^[4] These provisions do not support the plaintiff’s claim to the allowance of the costs of the inquest and the motion, for the costs they provide for are given to the defendants. There was no such recovery in the action, as .extended or vitalized the terms of the order. That rendered the plaintiff’s right to costs dependent on such a recovery as should be followed by the costs of the action. And that was not secured by the plaintiff. It was not'merely a verdict in his favor that was contemplated, but such a verdict as would give him the right under the law to recover costs. If that had not been the design of the court in making the order, more explicit language on that subject would have been employed.

It is manifest that the court did not regard the plaintiff as having an unqualified right to the costs in question; otherwise they would not have been made dependent upon a future event. By the direction which was given, the event the right depended upon was one which the law provided should be attended with- the recovery of costs in the action. Nothing less than that could have been designed to give the plaintiff the full benefit of what the order itself did not provide he.should have. No decisive authority has been found upon this subject, but, so far as they apply to it at all, the following

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cases support the conclusion already mentioned: Gildart v. Gladstone,^[3] Bull v. Ketchum,^[4] Koon v. Thurman.^[5] It was claimed that the order was not appealable, but, under the rule which is now well established, that position is untenable.^[6]

The order should be reversed and the motion denied, but, under the circumstances, without costs.

Davis, P. J., and Brady, J., concurred.

Order reversed and motion denied, without costs.

* 12 East, 668.

† † 2 Denio, 188 .

‡ ‡ 2 Hill, 357 .

§ § Security Bank v. National Bank of Commonwealth, 9 N. Y. Sup. Ct. (2 Hun), 287, and cases cited.

Footnotes

* Code, § 304.
† † Code, § 305.