Opinion
May, 1895.
Herbert T. Ketcham, for plaintiff.
Merrill Rogers, for defendant.
Upon further consideration I am convinced that I erred, upon a former motion for a new taxation of costs in this case, in allowing fifteen dollars for services after notice of trial and before trial. Such an allowance should not be made in the case of a new trial granted upon an order. The case of Spring v. Day, 44 How. Pr. 390, followed by Chief Judge DALY in Zelmanovitz v. Manhattan Ry. Co., N.Y.L.J., Feb. 13, 1891, is authority for such a charge in the case of a new trial resulting from a disagreement of the jury, but does not present the question of the proper practice in taxation for a new trial which has resulted from a reversal of a judgment and an order granting such new trial. I do not think, however, that the Code of Civil Procedure leaves any doubt as to the proper taxation under such circumstances. Section 3251, subdivision 3, awards costs "to either party: For all proceedings after notice of trial, and before trial, except as otherwise prescribed in this article, fifteen dollars." The different provision, indicated by the words which I have put in italics, is found below in the same subdivision, and is as follows: "Where a new trial is had pursuant to an order granting the same, for all proceedings after the granting of, and before the new trial, twenty-five dollars." I think it clear that the last provision operates to the exclusion of the former, and that where twenty-five dollars have been taxed for costs after the granting of and before a new trial, no allowance can be made in the same trial for costs after notice of trial. Since the matter was last before me there has been a second reversal and a second new trial has been ordered. It follows, therefore, as there have been two new trials granted in the case, for which fifty dollars were properly taxed as costs after the granting of and before such new trials, that the item of sixty dollars for costs after notice of trial for four trials should be reduced to thirty dollars. The remaining thirty dollars of the item is proper, being made up of fifteen dollars for costs after notice of trial of the first trial, and fifteen dollars costs after notice of trial of the trial which was made necessary by a disagreement of the jury. The payment of the costs and disbursements of a former trial was imposed upon the appellant as a condition to the granting of a new trial, which was granted, it seems, as a matter of favor, no available exceptions or errors of law appearing in the record on appeal. The principle applied in cases of similar indulgences in opening defaults ( Lennon v. MacIntosh, 19 Abb. N.C. 175) and in allowing amendments ( Cohu v. Husson, 13 Daly, 334; Starr Cash Car Co. v. Reinhardt, 6 Misc. 365; 56 N.Y. St. Repr. 404; 26 N.Y.S. 746) affords ground for a like decision in this case. I think that the successful party is entitled in such cases to tax the costs although they have already been once allowed and paid to him as a recompense for the favor granted to his adversary. It follows that the clerk's taxation of the costs and disbursements, paid as aforesaid, was proper, and consequently the same should not be deducted from plaintiff's bill of costs. Zelmanovitz v. Manhattan Ry. Co., supra, is an express adjudication that disbursements for stenographer's minutes of testimony upon a former trial for use upon a subsequent trial may be taxed. The plaintiff's attorney makes affidavit that the transcript was necessary for use, and was used upon the two succeeding trials. The charge therefor of five dollars and sixty cents is not unreasonably large, and, therefore, should be allowed.
Ordered accordingly.