Union Trust Co. v. Whiton — 24 N.Y. Sup. Ct. 593

Majority

p. 593

UNION TRUST COMPANY OF NEW YORK, Respondent, v. AUGUSTUS S. WHITON, Appellant. SAME v. SAME.

Headnote

Costs, on appeal — not given to the party unsuccessful on such appeal, although he may recover judgment finally — only one extra allowance recoverable.

On the first trial of this action the complaint was dismissed, and the exceptions were directed to be heard in the first instance at the General Term. The General Term ordered a new trial, “ with costs to abide the event.” On the second trial a verdict was rendered in favor of the defendant. Upon the taxation of the costs, held, that the defendant was not entitled to the costs of the review at the General Term.

Upon the first trial an extra allowance of §1,000 was granted. Upon the second trial an extra allowance of §750 was granted. 3eld, that the defendant was only entitled to the allowance granted upon the second trial.

Appeal from an order made at Special Term, directing that the taxation of the costs of appeal to the General Term be vacated and set aside, and that the clerk readjust the costs, and also from an order denying a motion of the defendant to set aside the

p. 594

taxation of costs of the clerk disallowing an extra allowance granted on the first trial of this action.

The action was brought to recover $75,000 of defendant, alleged to have been loaned by the plaintiff to said defendant on the 16th day of June, 1871.

This case was first tried in February, 1875, when the complaint was dismissed, judgment suspended, and the exceptions directed to be heard in the first instance at the General Term; an additional allowance of $1,000 was granted to defendant.

At the General Term a new trial was ordered, costs to abide event.

On the new trial in February, 1879, a verdict was rendered for defendant, upon which an additional allowance of $750 wag granted, and the costs were thereupon, on the 18th day of March, 1879, taxed by the clerk of the city and county of New York. The clerk allowed the General Term costs, to which the plaintiff objected, and refused to allow the $1,000 extra allowance given on the first trial, to which defendant objected.

Robert F. Little, for the appellant.

Daniel Seymour, for the respondent.

Justice Barrett, in disposing of the motion from which these appeals were taken, decided that the costs of the General Term awarded to the appellant on a former appeal, could not be taxed in favor of the unsuccessful party upon such appeal, although he ultimately prevailed in the action, and this is in accordance with the settled rule in this department.

He also decided that there could be but one allowance, and this was founded upon the proposition that the allowance having been made upon a judgment, when the judgment was set aside all the incidents, of which the allowance was one, were also vacated and set aside, and, therefore, there was really but one allowance existing and taxable.

For these reasons we think that the orders respectively appealed

p. 595

from should be affirmed, with ten dollars costs and disbursements of both appeals.

Present — Beady, P. J., and Ingalls, J.

Orders affirmed, with ten dollars coste and disbursements of both appeals.