Roosevelt v. Brown — 8 N.Y. Super. Ct. 642

Majority

p. 642

Roosevelt v. Brown.

General Term,

December, 1852.

Headnote

Where a verdict is taken subject to the opinion of court at general term upon questions of law, and judgment in the meantime is suspended, if judgment is rendered upon the verdict, the prevailing party is not entitled to costs, as upon an appeal from a judgment at special term.

(Before all the judges.)

At the trial, the jury were directed, if they should find certain questions of fact submitted to them in favor of the plaintiff, to render a verdict in his favor for the amount of his claim, subject to the opinion of the court at general term, upon certain questions of law also raised at the trial. They found a verdict for the plaintiff.

The plaintiff made a case, containing the pleadings, evidence, and questions of law raised at the trial. On argument of this case at the general term, the court ordered a judgment in favor • of the plaintiff upon the verdict.

The plaintiff’s bill of costs presented for adjustment contains these items, .viz.:

Costs of appeal before argument ■ . . . $15

Costs of appeal for argument .... 30

The defendant objects to them, as unauthorized by the Code. The parties and clerk ask instructions from the court, upon the point whether they should be allowed.

They cannot be allowed.

p. 643

.There has been no appeal, nor any judgment of the court from which an appeal could be taken, except that rendered by the general term.

At the trial, no decision was made upon any question of law. A verdict was ordered in favor of the plaintiff, if certain facts in issue were found, to exist; but it was ordered to be given and was rendered subject to such judgment as the court at general term might give upon the questions of law.

These questions of law were first tried at and determined by the general term. The court at general term did not review the judgment of the judge at special term upon these questions, but they were there first decided.

The prevailing party can only be allowed, under § 307, sub. 3, p. 15, for the trial of the issues of law, besides such costs as he may be entitled to under sub. 7, and disbursements under § 311, únless the case be one which entitles the plaintiff to a per centage, as to which no opinion is expressed.