Opinion
January, 1909.
Gustavus A. Rogers (Saul E. Rogers, of counsel), for appellant.
Clarence K. McGuire (Arthur A. Henning, of counsel), for respondent.
Upon a former trial the plaintiff obtained a judgment, which was reversed on appeal for evidence improperly introduced by plaintiff, and a new trial was ordered, "with costs to the appellant to abide the event." The plaintiff again succeeded at the second trial, but the clerk refused to tax in plaintiff's favor the costs of the first trial. The plaintiff applied to the court below for a retaxation, and from the order sustaining the clerk's taxation plaintiff appeals.
The party finally successful is entitled, upon the entry of a final judgment, to tax costs for all regular proceedings in the trial court, except such motion costs as may have been awarded to his opponent, either absolutely or to abide the event, and also to tax costs of all appeals, unless the appellate court had power, under sections 3238 and 3239 of the Code of Civil Procedure, to award, and actually did award, the costs of the appeal to his opponent, either absolutely or to abide the event. This right to trial costs the court cannot take away, where it comes under sections 3228 and 3229 of the Code. Where the Appellate Term of the Supreme Court reverses a judgment of the City Court of the city of New York, "with costs to appellant to abide the event," the costs conditional on the event are only those of the Appellate Court; and, where the respondent again succeeds at the second trial, he is entitled to tax the costs awarded him on the first trial as well as his costs at the second trial. Belt v. Ins. Co., 33 A.D. 239, Combs v. Combs, 25 Hun, 279; Howell v. Van Sicklen, 8 Hun, 524; affd., 70 N.Y. 595.
The order is reversed, with ten dollars costs and disbursements, and the motion for a retaxation of costs granted, with ten dollars costs.
BISCHOFF and GUY, JJ., concur.
Order reversed, with ten dollars costs and disbursements, and motion for retaxation granted, with ten dollars costs.