Opinion
June, 1915.
Alexander Kahn, for appellant.
Goodman Block, for respondents.
A former judgment herein in favor of the defendants was vacated upon appeal to this court and a new trial ordered "with costs to the appellant to abide the event." Upon a new trial the plaintiff recovered a verdict for $200 only and under Code of Civil Procedure, section 3228, subdivision 5, is not entitled to costs of the action. The plaintiff then proceeded to tax the costs on appeal, and from an order entered at Special Term of the City Court striking out the costs this appeal is taken.
In the case of La Rosa v. Wilner, 54 Misc. 574, this court decided, upon almost identical facts, that "Subdivision 5 of section 3228, supra, has no application whatever to the costs given a prevailing party on appeal," citing section 3237 of the Code of Civil Procedure which is contained in the same article (Tit. 1, art. 1, chap. XXI) with section 3228, and states, "The foregoing sections of this article do not affect the recovery of costs upon an appeal."
The learned justice at Special Term in granting the order relied upon the cases of People ex rel. Shiels v. Greene, 114 A.D. 168, and Miller v. City of Buffalo, 129 id. 833. Neither of these cases, however, is a case within title 1, article 1, chapter XXI of the Code of Civil Procedure and affected by the provisions of section 3237 thereof quoted above, and the former case follows Snyder v. Collins, 12 Hun, 383, which was decided prior to the enactment of section 3237, supra. In a case not governed by section 3237 it is well settled that "where a new trial is granted with costs to abide the event" the event contemplated is one which determines that the successful party is, by law, entitled to costs ( Snyder v. Collins, 12 Hun, 383; People ex rel. Shiels v. Greene, supra), but it is impossible in construing the provisions of sections 3228 et seq. of the Code of Civil Procedure to overlook the express stipulation that they "do not affect the recovery of costs upon an appeal." If the effect of section 3228 is removed from consideration of costs on appeal, the plaintiff being successful in the action is entitled to recover the costs of the appeal given "to abide the event."
The order appealed from is accordingly reversed, with costs. The plaintiff is not, however, entitled to the item of twenty-five dollars taxed pursuant to section 3251, subdivision 3, of the Code of Civil Procedure for "proceedings after granting a new trial" which item must be stricken from the bill of costs on appeal as taxed.
GUY and BIJUR, JJ., concur.
Order reversed, with costs.