Opinion
March, 1906.
Max Schleimer, for appellant.
Steuer Hoffman, for respondents.
An examination of the record upon the former appeal to this court shows that this was an appeal from an order granting a new trial upon a case made and settled. The printed case, on page 4, shows that the motion for a new trial was made upon the exceptions taken at the trial; while on page 58 of the same case appears this memorandum: "All amendments except the 25th amendment are allowed; the 25th amendment is disallowed. Case settled and filed April 8th, 1905. J.H. McC. J.C.C."
It is apparent, therefore, that the motion was made upon the case; and it has been repeatedly held that, upon such a motion, the successful party is entitled to full costs. See Reid v. Gaedeke, 38 A.D. 107; Ireland v. Harlam, 88 N.Y.S. 990.
The judge below erred in holding that the plaintiff was only entitled to ten dollars costs.
The order appealed from, therefore, must be reversed, with costs and disbursements; and the bill of costs is hereby remitted for retaxation.
SCOTT and O'GORMAN, J.J., concur.
Order reversed, with costs and disbursements, and bill of costs remitted for retaxation.