First National Bank v. Fourth National Bank — 29 N.Y. Sup. Ct. 563

Majority

p. 563

THE FIRST NATIONAL BANK OF MEADVILLE, Pennsylvania, Appellant, v. THE FOURTH NATIONAL BANK OF THE CITY OF NEW YORK, Respondent.

Headnote

Costs — when the unsuccessful pan'ty on an appeal is not entitled to the costs-of it, though he finally succeeds.

When the Court of Appeals reverses a judgment in favor of the plaintiff, and orders a new trial, with costs to abide the event, and on the second trial

p. 564

the plaintiff again recovers a judgment, he cannot tax, in his favor, the costs of the reversal by the Court of Appeals.

Appeal from an order made at Special Term, refusing to allow the plaintiff to tax the costs of the reversal of a judgment in his favor, in the Court of Appeals.

George A. Black, for the appellant.

• Ba/oid J. H. Willcox, for the respondent.

The Court of ¡Appeals reversed a judgment in the plaintiffs favor, with costs to abide the event.

The plaintiff, upon the second trial, having again prevailed, seeks to tax against the defendant the costs of the reversal. This he cannot dp. These costs were not awarded to him, but to the defendant, in case of the latter’s success upon the new trial. The following authorities are decisive of this question: Howell v. Van Siclen, 8 Hun, 524 ; affirmed, 70 N. Y., 595 ; Union Trust Co. v. Whiton, 17 Hun, 593 ; appeal to Court of Appeals dismissed, 78 N. Y., 491 .

The orders appealed from should be affirmed, with $10 costs, and the disbursements of the appeal.

Present — Davis, P. 3., Beady and Baeeett, JJ.

Order affirmed, with $10 costs, and disbursements.