Majority
p. 205WILLIAM R. CARNES, Plaintiff and Respondent, v. GEORGE W. PLATT, Impleaded, etc., Defendant and Appellant. Before Monell, Ch. J., and Sedgwick, J. Decided December 6, 1876.
Headnote
I. EJECTMENT.1. ’ Costs of former trial, not taxable.
(a.) Opon a new trial, under § 37, title 1, chap. 5, part 3, 2?. 8., providing that the court in which judgment shall be rendered in an action of ejectment, shall within three years thereafter, upon the application of the party against whom the same was rendered, and upon payment of all costs and damages recovered thereby, vacate such judgment and grant a new trial, the party in whose favor such new trial is granted, can not, upon recovery of a judgment thereon, tax as part of his costs the costs for proceedings had before the granting of the order for a new trial.
Appeal from order affirming taxation of costs.
This action was brought to eject the defendant from certain property in the city of New York.
The following proceedings have been had in the action:
First.—A trial before Mr. Justice Barbour. Verdict for defendant.
Appeal to the general term. Judgment reversed, with costs to abide the event.
Second.—A trial before Mr. Chief Justice Robertson. Verdict for plaintiff.
Appeal to the general term. Judgment affirmed.
Appeal to the court of appeals. Judgment reversed, with, costs to abide the event.
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Third.—A trial before Mr. Justice Sedgwick. Verdict for plaintiff.
Appeal to the general term Judgment affirmed.
Appeal to the court of appeals. Judgment affirmed.
Fourth.—An order under 2 It. 8. 309, § 37, granting a new trial herein, and vacating the judgments previously entered, the defendant Platt having paid all the costs recovered by the plaintiff herein.
Fifth.—A trial before Mr. Justice Freedman. Verdict for defendant.
The defendant, after the last trial, presented his bill of costs to the clerk of this court for adjustment, including in the bill all of defendant’s costs and all of his disbursements incurred in all of the proceedings herein.
The clerk refused to allow the defendant any costs, except those for proceedings after the order granting a new trial, and no disbursements except those incidental to the new trial.
The costs taxed by the clerk were as follows :
“ Costs on Fourth Trial.
Costs after New Trial granted and
before New Trial ............... $25 00
Term Fees, Five Terms............ 50 00
Trial Fee......................... 30 00
Allowance by order............... 500 00
$1,340 00
“ Disbursements.
Witness Fees, Fourth Trial........ $5 50
Clerk entering Judgment, Fourth
Trial........................ 1 00
Transcript and Filing, Fourth Trial 11
Sheriff returning Execution, Fourth
Trial............................ 69
Stenographer’s Minutes, Fourth Trial..'.......................... 10 80”
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From this taxation defendant appealed to the special term, when it was affirmed, and he now ap peals to the general term.
Edward S. Clinch, attorney and of counsel for appellant, urged :
I. The defendant having finally succeeded, is entitled to recover his entire costs in the suit from its commencement down to, and including the entry of judgment on the verdict rendered at the fourth and last trial (Carvey v. Rider, 2 Cow. 617 ; Meule v. Goddard, 5 B. & Ald. 766; David v. Harring, 1 St. 300; Burchall v. Bellamy, 5 Burr. 2693).
II. The terms “ that the costs shall abide the event of the suit, has been construed to mean that the party who finally succeeds, is entitled to his costs upon all the previous trials, whether he failed or succeeded in them, if those costs were directed to abide the event of the suit (Carvey v. Rider, supra; Meule v. Goddard, Id.; 4 Chitty's Gen. Practice, 89; 1 Paine and Duer's Practice, 585).
III. An “event”—from the Latin “evenire” to come out or from—is a thing which happens from or follows, a cause, and they are called “events,” because they come out of a cause (Burrill's Law Dict., "Eventus"). The event, in an action of ejectment, is the recovery by the plaintiff, or the maintenance by the defendant, of possession of the property which is the subject of the action. In this action the event has been the final success of the defendant in maintaining possession.
• IY. The reason urged on the argument at the special term why the defendant should not recover the costs of proceedings before the order of January 28, 1875, granting a new trial herein, that such order was made on the payment by defendant of plaintiffs costs, as a condition precedent to such new trial,is not sound,
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because the defendant does not ask to be paid the plaintiffs costs, but asks that his costs which are distinct from plaintiffs, be allotted him. The payment of costs prior to a second trial in ejectment bears no analogy to the payment of costs as a condition of granting a motion, for the costs in the latter case are imposed as a penalty, as it were, for some erroneous proceeding, or as a condition of receiving a favor, while in the former it is imposed to invoke from the unsuccessful party, some evidence of good faith in the continuance of the litigation, and on the payment of them the new trial is a matter of right. At common law, the action of ejectment was a mere possessory action, and concluded no one, either as to the title or possession, except as to the time between the day of the demise and the recovery. Even the party against whom the judgment was rendered was at liberty , to bring a new action, and again litigate as to the possession as often as he pleased (Tyler on Ejectment. 632 ; Ainslie v. The Mayor, 1 Barb. 168 ). To prevent this constant litigation, and to provide for the settlement of titles to real estate, after a reasonable number of opportunities to the interested parties to prove title, the rule of the common law was changed by the revised Statutes, and evidence of good faith was required of the unsuccessful party before being allowed again to litigate his title. There is no provision of the statute from which any inference can be drawn that the costs for proceedings before a new trial can not be collected, and in the absence of such provision the court should not make a rule which, while the last trial may result in a judgment in favor of the party paying the costs, prevents the recovery by the party of the compensation for his trouble provided by the Code in the way of costs, and even the disbursements necessarily made by him in the preparation of his cause for trial. The court should rather see that com
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píete restitution was made to the finally successful party.
William G. Sterling, attorney, ,and Daniel T. Walden, of counsel for respondent, urged:
I. The defendant paid the costs of the previous proceedings as a condition to obtaining the new trial, and, as those have all been awarded and paid to plaintiff, the defendant can not now recover them (Slocum v. Lansing, 3 Denio, 259 ; Linacre v . Lush, 3 Wend. 305 ).
II. The effect of the order granting the new trial under the statute, is to strike out all the proceedings in the action to and including the judgment, leaving the issue to be tried again. So that whoever succeeds on the trial recovers costs only for the proceedings from the time the new trial is ordered. Were this not so, the case might result in the absurdity of giving to the plaintiff a second time the costs of services for which he had once been paid. If the plaintiff had had a verdict on the new trial, would the defendant concede that he should recover all the costs again from the beginning; if not, why should defendant on his success ?
III. Formerly a judgment in ejectment did not determine the right of property, and either party when unsucessful might bring in a new ejectment to recover the possession, and ejectments might thus be indefinitely repeated, until a Court of Equity afforded relief by restraining further litigation. The Revised Statutes in making the judgment conclusive as to title saved the necessity of applying to a court of equity, and provided a mode by which the unsuccessful party, if dissatisfied, may still be indulged with a further trial (2 Paine and Duer, Pr. 517 ; 3 R. S. (2d. Ed.) 709, Revisor’s notes; Bates v. Stearns, 23 Wend. 483 , Cower, J., 2 R. S. [2d. Ed.] § 42; 3 R. S. [5th Ed.] § 35). This history of the provisions as to new
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trial shows that the recovery of costs must be confined to the proceedings subsequent to the order granting the new trial.
The counsel for the defendant, places the defendant’s right to costs upon directions made upon certain appeals, that costs were to abide the event; and he urges that the event referred to was the determination of the action finally, even after the defendant had voluntarily paid the costs under the statute. I do not see that such construction should be given to those directions. The event referred to was the first final judgment to be given, which when made, so far as the proceedings up to that event are concerned, was conclusive of the parties rights. So that, in fact, when the clerk taxed costs, if the question was open as to who should have costs, before the order giving the new trial, the first final judgment of the .court of appeals was to be considered, and had determined that the plaintiff was entitled to the costs of the proceedings up to that time.
Beyond this, however, I am of opinion that the section of the Revised Statutes under which the new trial was granted, provide that the payment of costs by the unsuccessful party shall be a final disposition of the question of costs for former proceedings. The new trials contemplated by the Statute take the place of the new actions of ejectment that before the Statute might have been brought. Although new actions might be brought, they could not result in the unsuccessful party in the first action recovering his costs of that action. The first action was a final adjudication for all purposes, so far as the questions in issue were concerned. . From the proper construction of the Statute, and on general principles, when costs are given to one party, the opposite party has no right to costs for the same proceedings. If the position of the
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appellant is correct, the Statute provides that in certain contingencies in actions for ejectment both sides may have costs for a part of the proceedings.
The order appealed from should be affirmed, with ten dollars costs, and disbursements to be taxed.
Monell, Ch. J,, concurred.
Cases cited
- Carvey v. Rider 2 Cow. 617 p. 207
- Ainslie v. Mayor of New-York 1 Barb. 168 p. 208