Opinion
January, 1894.
Janeway, Thatcher Richards, for plaintiff (respondent).
Joseph C. Rosenbaum, for defendants (appellants).
When we reverse a judgment of the City Court and order a new trial, with costs to the appellant to abide the event, we intend that the costs of the appeal to this court, and of the appeal to the General Term of the City Court, and of the trial which resulted in the judgment reversed, shall be included in such costs. In construing an order of the Court of Appeals ordering a new trial in our own court, with costs to abide the event, we hold that the costs of the former trial, as well as of the appeal, are intended ( Mott v. Consumers' Ice Co., 8 Daly, 244), and our rule is in conformity with that of the Court of Appeals in reversing a judgment and ordering a new trial, with costs to abide the event, as the appellate court intends thereby all the costs of the action up to and including the decision of the court. Franey v. Smith, 126 N.Y. 658. And to the same effect is the decision of the Superior Court with respect to a similar award of costs to appellant. Cochran v. Gottwald, 42 N.Y. Super. Ct. 214.
When such costs are allowed to the appellant to abide the event they cannot be taxed by his adversary if the new trial results in favor of the latter. We have the power under section 3238 of the Code of Civil Procedure, regulating costs upon appeal from final judgment, to award costs absolutely or to abide the event, and we have the power to award them absolutely to the appellant; and when we grant them to him conditionally upon his ultimate recovery his adversary cannot, under any construction of such an order, become entitled to them, but can recover only the costs of the new trial and such costs of the action as are exclusive of the costs and disbursements of the trial which has been set aside.
The costs of the first trial, which terminated by the withdrawal of a juror, were unaffected by our decision upon the appeal from the judgment upon the second trial, and the plaintiff, having ultimately succeeded in the action, would be entitled to such costs. The defendants contend, however, that the thirty-five dollars paid by them as a condition of the favor extended to them in permitting the withdrawal of a juror to enable them to amend, embrace the trial fee upon that trial, and that the latter item cannot be taxed and collected from them a second time. This contention cannot be sustained upon authority; the payment of costs as a condition of amendment contemplates only a compensation to the plaintiff to be measured by the taxable costs, and the successful party is still entitled to tax costs of the trial. Cohu v. Husson, 13 Daly, 334. But the court which awards the costs in such a case is at liberty to construe its own order and to say what is embraced in the award; and the City Court at General Term having disallowed the taxation of a trial fee for the first trial, placed a construction upon its own order with which we cannot interfere. Cohu v. Husson, 13 Daly, 338.
We must, therefore, affirm so much of the order which disallows the trial fee upon the first trial and from which the plaintiff appeals, and we must affirm so much of the order as allows the plaintiff to tax the jury fee upon such trial, from which the defendants appeal. The allowance to the plaintiff of the trial fee and jury fee upon the second trial was improper because they were a part of the costs which we awarded to the appellant in granting him a new trial, and the order of the General Term which affirms such allowance and from which defendants appeal must be reversed.
As neither party has wholly prevailed upon this appeal, no costs are allowed.
BISCHOFF and PRYOR, JJ., concur.
Ordered accordingly.