Snyder v. Collins — 19 N.Y. Sup. Ct. 383

Majority

p. 383

ERNST CHARLES SNYDER, Appellant, v. CHARLES COLLINS, Respondent.

Headnote

Costs to abide event — action for assault — effect of recovery therein, of less than fifty dollar's.

In an action for assault and battery plaintiff was nonsuited; on appeal to tbe General Term a new trial was granted, “costs to abide tbe event;” on such new trial plaintiff recovered a verdict for ten dollars. Held,, that the costs included in the judgment entered thereon should not exceed the recovery, viz.: ten dollars.

Appeal by plaintiff from an order, setting aside tbe taxation of costs herein, and directing tbe clerk of Queens county to tax no more costs than tbe amount of tbe verdict rendered in said action.

G. A. S. Ycm JYostramd, for tbe appellant.

Jas. H. Stcmbrough, for tbe respondent.

There is no merit in this appeal. Tbe plaintiff brought an action against tbe defendant for assault and battery and false imprisonment. At tbe first trial be was nonsuited. Hpon appeal to tbe General Term tbe nonsuit was set aside and a new trial granted, “ costs to abide event.” Upon the second trial tbe plaintiff obtained a verdict for ten dollars. Hpon this verdict be taxed tbe costs of tbe appeal to tbe General Term and entered judgment. Tbe Special Term ordered tbe retaxation of tbe costs and directs that there shall be no more costs than damages included in tbe judgment. Tbe order was right. Tbe event upon which tbe costs of tbe appeal depended was an event which should entitle tbe plaintiff to costs by law. That event never happened to him to an extent greater in all than ten dollars.

Order affirmed, with costs and disbursements.

Gilbert and Dykman, JJ\, concurred.

Ordered accordingly.