Donovan v. Vandemark

Headnote

Costs — taxation of — when the party, finally succeeding, is entitled to the costs of an unsuccessful appeal taken by him.

Appeal from an order, made at a Special Term, striking'from the costs, as taxed, the sum of $147.50.

' This action was brought to recover about eighty acres of land!' The plaintiff’s right to recover depended upon the validity of a trust contained in the will of Andries Schoonmaker, deceased. Upon the first trial at the Circuit, the justice held the trust invalid, and ordered ■ judgment for the defendant. The plaintiff appealed to the" General Term, 'where the judgment given at the Circuit was' affirmed. The plaintiff "then appealed to" the Court of Appeals,'

where the judgment appealed from was reversed, and a new trial granted, with costs to abide the event, the Court of Appeals holding the trust to be valid. The judgment of the Court of Appeals was, by an' order, duly made the judgment of the Supreme Court. Upon a second trial at the Circuit the justice, adopting the decision of the Court of Appeals, gave judgment for the plaintiff, with costs. Upon taxing the costs, the defendant objected to the plaintiff’s taxing the costs incurred at General Term, on the ground that the plaintiff had not there, been successful. The clerk, however, allowed those costs. The defendant then moved at Special Term, where an- order was granted disallowing those costs, and from that order the plaintiff now appeals.

The court, at General Term, said: “ The plaintiff is successful in the action. The action is in ejectment. Hence the plaintiff is entitled to all the costs of the action, including all costs in the progress of the case, excepting costs of special motions which do not go into final costs unless specially ordered.

“ The order should be reversed, with $10 costs, and disbursements, and the motion to strike out costs denied, with $10 costs.”