Carpenter v. Manhattan Life Assurance Co. — 32 N.Y. Sup. Ct. 194

Majority

p. 194

JACOB CARPENTER, Appellant, v. THE MANHATTAN LIFE ASSURANCE COMPANY, Respondent

Headnote

Costs — after reversal on appeal and new trial ordered, costs to abide event — party successful on second trial, entitled to costs of first trial. ■

Where a judgment in favor of the plaintiff, for so small an amount as to entitle the defendant to costs, is reversed on appeal, costs to abide the event, and a new trial is granted on which the plaintiff obtains a judgment sufficient to entitle him to costs, he is entitled to costs as well of the first trial as of the appeal and the new trial.

Appeal from an order made at Special Term, affirming the action of the county clerk of Westchester county, in disallowing plaintiff costs and disbursements of a first trial.

The action was brought to recover damages for the conversion of personal property and was twice tried. Upon the first trial the plaintiff had a verdict for the sum of ten dollars. A motion was made for a new trial on the minutes and denied, and a judgment was entered in favor of the defendant for costs. The plaintiff thereupon appealed to the General Term from the judgment, and also from the order denying a new trial, and the General Term reversed the judgment and order and granted a new trial, with costs to abide the event.

Upon the second trial at the Westchester Circuit the plaintiff had a verdict of $491.25 damages. The clerk disallowed the plaintiff’s

p. 195

costs and disbursements for the first trial, and upon appeal by plaintiff therefrom an order was made at Special Term affirming the action of the county clerk, and from such order this appeal is taken.

M. M. Sillimcm and O. M. Close, for the appellant.

Martin J. Keogh, for the respondent.

If the correct judgment had been reached upon the first trial the plaintiff would have been entitled io costs. An incorrect rule of damages having been laid down, he thereby failed to get a verdict for an amount sufficient to entitle him to costs. He was bound even to pay costs to his adversary. Upon appeal the judgment was reversed and a new trial granted to the plaintiff, costs to abide the event. This event was the result of the second trial. It was in favor of the plaintiff for an amount establishing plaintiff’s right to costs.

This includes all the costs of the action as well of the first trial as of the appeal and the new trial. The order should be reversed, with costs and disbursements, and the notice to retax costs denied, with costs.

Gilbert, J., concurred, Dykman, J., not sitting.

Order reversed, with costs and disbursements, and motion to retax costs granted.