Opinion
March, 1910.
Joseph Gans, for plaintiff.
Schlesinger Schlesinger, for defendant.
This is a motion why a retaxation of costs should not be ordered by the court. Upon taxation of the costs by the clerk of this court the defendant objected to the following items: Trial fee, issue of fact, three trials, ninety dollars; making and serving amendments to case, twenty dollars; making and serving of more than fifty folios, ten dollars; proceedings before and after new trial, twice, fifty dollars; clerk's fee on entering judgment, twice, one dollar; jury fees, three trials, nine dollars; paid printing points, eighteen dollars and fifty cents. It appears from the papers that there were three trials of this action. The first trial resulted in a judgment in favor of the plaintiff, which on appeal was reversed and a new trial ordered, with costs to the appellant (defendant) to abide the event. The second trial resulted in a dismissal of the complaint and a judgment in favor of the defendant, from which judgment the plaintiff appealed, and resulted in a reversal of the judgment in favor of the appellant (plaintiff) to abide the event. The third trial resulted in a verdict in favor of the plaintiff, on which verdict a judgment was rendered in favor of the plaintiff. The plaintiff, being the successful party, is entitled to the trial fee of thirty dollars for each trial had, even though the prior trials were abortive. Hudson v. Erie R.R. Co., 57 App, Div. 98; Gilmour Mfg. Co. v. Stetler, 58 Misc. 361. Where the costs in the appellate court on the reversal of a judgment are given to either party, as the case may be, to abide the event, and that party is finally unsuccessful, the successful party is entitled to tax the costs on the trial that was reversed. Belt v. American Cent. Ins. Co., 33 A.D. 239. And in this case the court held that a reversal, with costs to the appellant, who is again defeated, refers only to the costs in the Court of Appeals, and the respondent is entitled to the costs of both trials. Mott v. Consumers' Ice Co., 8 Daly, 244. The two items of twenty-five dollars each for proceedings before and after granting new trial were properly allowed. Code Civ. Pro., § 3251, subd. 3; Mossein v. Empire State Surety Co., 117 A.D. 782. For making and serving case of more than fifty folios ten dollars must be allowed. For making and serving amendments to case twenty dollars must be allowed. Code Civ. Pro., § 3251, subd. 3. The plaintiff is entitled to actual disbursements expended on the trial of this action — being the successful party — such as one dollar for entering judgment, nine dollars for three jury fees and the item for printing points. Motion for retaxation must therefore be denied.
Motion denied.