Murtha v. Curley

the court below with costs of appeal to the appellant to abide the event of a new trial. The plaintiff appealed to the court of appeals.

The order of the general term of this court was reversed by the court of appeals and the judgment of the trial term was affirmed with costs to the plaintiff. The plaintiff then presented his bill of costs for taxation to the clerk, who refused to tax the costs of the general, term in favor of the plaintiff. The plaintiff then moved at special term for a re-taxation of said costs, and the special term made an order directing the clerk to allow to the plaintiff the costs of the general term.

The court at General Term, said: “The order of the general term limited the recovery of the costs of the general term to the defendant Curley,- who was the successful party on the appeal to the general term, and he was to recover the costs of the general term only in the event that he should finally succeed in the action. The general term had the power to reverse the judgment with costs to abide the event, in which event, the party finally succeeding in the action should have been entitled to tax the costs of an appeal or trial at which we had been beaten (First Natl. Bk. •y. Fourth Natl. Bk., 84 If. Y. 469). The costs to be awarded upon the granting of a new trial are in the discretion of the general term, and may be awarded to either party absolutely, or to abide the event {Code Civ. Proo. § 3238). In this case, the genera] term saw fit to award the costs of the appeal to the defendant Curley. It did not award them to the plaintiff. The plaintiff could not have them in any event because he did not maintain the judgment in his favor (Howell v. Van Siclin, 8 Bun, 524). It is true that the court of appeals reversed the judgment of the general term “ with costs,” but the words “with costs” in the order of the court of appeals mean, the costs in that court (Sisters of Charity v. Kelly, 68 N. Y. 628 ).