Summary
In Burdett v. Lowe, 85 N.Y. 241, which was followed in Bennett v. Surety Co., supra, the undertaking under consideration, being in the same language as the undertaking in the present case, holds distinctly that the surety is only liable for costs on the appeal to the appellate court, not for all of the costs of the action.
Summary of this case from Erdle v. BassettOpinion
Argued March 8, 1881
Decided April 26, 1881
Edward D. McCarthy for appellants.
John E. Burrill for respondents.
There was an excess of words in the undertaking construed in Post v. Doremus ( 60 N.Y. 371); but eliminating those, the obligation was precisely like that on which this action was brought. The circumstances of the two cases, and the stage of the action at which the prevailing party became entitled to costs, are also the same, and the decision then made must control here. The plaintiffs, therefore, were entitled to recover only such costs as could be taxed against Harris and Jones (the unsuccessful appellants) as costs of appeal to this court. The defendants' counsel also claims that an offer of judgment was made and that costs of this action should be adjusted accordingly. But that fact does not appear upon the record and cannot be considered.
The judgment of the General and Special Terms should be reversed and a new trial ordered, with costs to abide the event.
All concur.
Judgment reversed.