Opinion
March 1, 1907.
F.J. Moissen, for the appellant.
William F. Hagarty [ James T. O'Neill with him on the brief], for the respondent.
When the plaintiff's first judgment was reversed and a new trial was granted, with costs to abide the event ( 97 App. Div. 230), and the plaintiff succeeded upon the second trial, he was entitled to tax the costs of both trials. The learned counsel for the appellant argues that in effect the plaintiff thereby profits by a wrong proceeding. The point has been urged before and the force of it recognized, e.g., by FREEDMAN, J., in Isaacs v. N.Y. Plaster Works (4 Abb. N.C. 8). But the argument for the rule is that the defendant was not entitled to the costs when he appealed, as he had been defeated, and as a defeated party he demanded a new trial, contending that he was not liable. He gained the new trial, but he was again defeated, and the plaintiff, who had not been awarded costs absolutely, became entitled to them as the successful party. On the other hand, the defendant could have saved costs by offer of judgment, but he preferred to litigate, and hence he is charged with the costs of the proceedings finally determined against him. (See opinion of BRADY, J., in Howell v. Van Siclen, 8 Hun, 524; affd., 70 N.Y. 595.) I think that the respondent was entitled to tax the costs. ( Howell v. Van Siclen, supra; First Nat. Bank of Meadville v. Fourth Nat. Bank of N.Y., 84 N.Y. 469; Belt v. American Central Ins. Co., 33 App. Div. 239; Loring v. Morrison, 25 id. 139; Smith v. Smith, 22 id. 319; Sanders v. Townshend, 63 How. Pr. 343; Van Wyck v. Baker, 11 Hun, 309; Nichols Pr. § 2881; Baylies N.T. App. [2d ed.] 494.) It is to be noted that the costs were "to abide the event" and not to the appellant to abide the event.
I am of opinion, however, that it was error to tax any term fee in the Trial Term previous to the amendment of the complaint if this was done. For although by the amendment of the complaint in this case the cause of action was not changed, the original issue as on the calendar before the amendment was destroyed by the amendment of the complaint. I find no other errors in the taxation prejudicial to the defendant, for although three items of disbursements of seventy-five cents, eighteen cents and fifty cents are in excess of the proper amounts, yet the plaintiff was entitled to tax such disbursements as of two trials and not one. The order should be modified as indicated, and as thus modfied affirmed, without costs to either party.
HOOKER, RICH and MILLER, JJ., concurred.
Order modified as indicated in the opinion of JENKS, J., and as thus modified affirmed, without costs to either party.