Majority
p. 303ANDREW J. PROVOST, Respondent, v. JAMES FARRELL, Appellant.
Headnote
Costs — taxation of.In an action of ejectment the plaintifE recovered upon the trial before a referee; a new trial was ordered by the General Term, costs to abide the event. On the second trial defendant obtained a verdict in his favor; a new trial was granted on the ground of newly-discovered evidence, on payment of $150, costs and disbursements of the action, and ten dollars costs of the motion, after payment of which, a third trial was had and a verdict rendered in favor of plaintiff.
Held, that plaintiff was not entitled to tax costs for either the first or second trials, but only for the third.
Fees paid to a stenographer and for preparation of maps cannot be taxed.
Appeal from an order readjusting the costs of plaintiff, made on an appeal to the Special Term from the taxation by the clerk of Kings county.
The costs accrued in an action of ejectment and the following proceedings have been had therein :
On the first trial before a referee judgment was rendered for the plaintiff, an appeal was taken by the defendant to the General Term. The judgment was there reversed on the facts and the law, and a new trial ordered at Circuit, “ costs to abide the event.”
On the second trial a verdict was given for defendant. A motion was made by plaintiff for a new trial on the minutes and on the ground of newly-discovered evidence; which motion was granted by Mr. Justice Gilbert upon payment by plaintiff “of $150.61, costs and disbursements of this action, and ten dollars costs of this motion.”
On the third trial a verdict was given for plaintiff for the recovery of the land, without damages. A motion for a new trial was made on the minutes by the defendant, and denied by Mr. Justice Pratt, without costs.
The following was the bill of costs presented by the plaintiff:
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1. To costs taxed on first trial and entered in judgment, $251 39
2. To costs on appeal.............................
3. Two terms, General Term cal..................... 20 00
4. Before argument............................... 20 00
5. Bor argument.................................. 40 00
6. To printing points.................'.............. 17 50
Second Trial.
7. Trial of issue of fact............................. 30 00
8. Trial more than two days........................ 10 00
9. Term fees October and May..................... 20 00
10. Jury and trial fee............................... 4 00
11. Witnesses’ fees, J. V. Meserole, seven days and mileage, 6 86
12. Nicholas Boch, seven days and mileage............. 6 86
13. Register fees................................... 1 25
14. Jos. B. Oolyer, seven days and mileage............. 6 88
15. Stenographer’s fees........... 25 00
Third Trial.
16. Proceedings before and after granting new trial..... 25 00
17. Trial issue of fact............................... 30 00
18. More than two days.................■............ 10 00
19. Register’s fees, maps............................. 1 25
20. Jury and trial fees.............................. 4 00
21. Witnesses.....’................................
22. General Meserole, six miles, seven days............ 6 86
23. Bartlett, six miles, seven days................. 6 86
24. Opinion General Term......... 1 25
25. Affidavits, etc........... 1 00
26. Satisfaction-piece............................... 25
27. Transcripts and filing............................ 37
28. Certified copy judgment......................... 1 50
29. Postage....................................... 60
30. Stenographer’s fees............... 25 00
31. Sheriff’s fees on execution........................ 1 38
32. Maps, copies and drawings, etc.................... 75 00
33. Clerk on entering judgment and tax............... 1 25
34. Costs of motion for new trial..................... 10 00
$661 31
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Tbe bill of costs, as presented, was.................... $661 31
Tbe clerk struck out item 32 (maps, etc.).............. 75 00
Costs as taxed..................................... $586 31
Disallowed by Judge Dtkman :
Item 15 (stenographer’s fees)................. $25 00
Item 30 (stenographer’s fees)................. 25 00
Item 34 (costs of motion).'................... 10 00
Also $150 paid defendant.................... 150 00
-- 210 00
Leaving as costs........................$376 31
The appellant claims that there should be deducted from
the bill of costs of.................................. $661 31
the followiug items:
Item 1, costs of first trial................... $251 39
Items 7 to 15, costs of second trial........... 85 85
Item 15, stenographer’s fees.................. 25 00
Item 30, stenographer’s fees.................. 25 00
Item 32, maps, copies, etc................... 75 00
Item 34, costs of motion....... 10 00
Items 2 to 6, costs of appeal................. 97 50
-- 569 74
Leaving judgment for plaintiff of.................. $91 57
W. P. Lynch, for the appellant.
A. J. Provost, respondent in person.
The plaintiff’s application for a new trial was not made under the provision of the Revised Statutes on that subject (2 R. S., 309, § 37), but was addressed to the discretion of the court. Hence the court had power to grant it upon terms less- severe than the statute cited prescribes. The court exercised that power, and granted the motion upon payment of part only of the defendant’s costs of the action, viz., $150.61. That, in legal effect, determined the right to all the costs of the action which had accrued prior to the entry of the order granting a new trial, except the costs of the appeal, in
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favor of tbe defendant,' limiting the amount thereof, however, to the sum named. After such an order neither party would be entitled to claim costs which had been so adjusted and ordered paid. The costs of the first trial, and of the second trial must, therefore, be disallowed. The items for stenographer’s fees, and maps are not taxable.
The result is, that the plaintiff is entitled to tax only the costs and disbursements of the appeal, and other costs which have been incurred since the entry of the order of July 7, 1877.
Ordered accordingly.
Present — Barnard, P. J., and Gilbert, J.; Dykman, J., not sitting.
Order reversed, and readjustment ordered in accordance with opinion.