HOWELL v. VAN SICLEN

HOWELL v. VAN SICLEN. Court of Appeals; June, 1877. [Affirming 8 Hun, 524.] Appeal.—Costs.—Extra Allowance. Where an unsuccessful party, charged with costs, gets a reversal on appeal, “with costs to abide event,” and is again unsuccessful on the new trial, his adversary is entitled to costs of both trials. Thus where, on defendants’ appeal from a judgment in favor of plaintiff, a new trial was granted by the general term, “ with costs to the defendants to abide the event—held, that this only deprived the plaintiff of the costs of that appeal, and that having recovered a judgment upon the new trial he was entitled to tax his costs for both trials. An extra allowance will be granted to the party successful, on a new trial, although not difficult or extraordinary, where, although the same party was successful on the first trial, which was of a difficult and extraordinary nature, the judgment was reversed and a new trial ordered. Appeal from taxation of costs, and an allowance. This action was originally brought by Alexander J. Howell against John S. Howell about November 12, 1872, to recover the amount of a promissory note, and also for rent. The said John S. Howell, having died during the pendency of the action, it was revived against Henry K. Van Siclen and William Joyce,, his executors. The defendants set up three counter claims and after reply served an amended answer, which also contained three counter claims, and was replied to. The case was referred to a referee to hear and determine. During the trial before him a commission was issued to take the testimony of a non-resident witness for the defendants. A large amount qf testimony was taken, and the referee finally reported in favor of the plaintiff and judgment was entered thereon against the defendants, with costs and an extra allowance. On appeal by the defendants from this judgment the general term reversed it and ordered a new trial, with costs to the defendants to abide the event. The cause having been again referred to the same referee, and there having been a brief trial before him, he reported a second time in favor of the plaintiff. Upon the taxation of costs after this trial the plaintiff was allowed by the clerk to include the bill of costs taxed upon the first trial. The defendant “excepted, to each and every item in the foregoing bill of costs taxed on the first trial, on the ground of the language of the judgment of reversal that only defendants should have costs on the new trial if successful.” This taxation was affirmed by the special term and afterwards by the general term. An extra allowance was also granted by the special term and affirmed by the general term (reported in 8 Hun, 524). From both these orders the defendants appealed to the court of appeals. George W. Van Siclen, for defendants. I. When a judgment obtained on a first trial is reversed by the general term, the costs of the first trial are gone with the reversal of the judgment ;• and although upon the new trial ordered by the general terms the same party succeed, he can only tax costs of the new trial (Patten v. Stitt, 50 N. Y. 591). The costs allowed by section 307 of the Code, refer to a new trial on the minutes and not to a new trial granted on appeal. The order is appealable (Sturgis v. Spofford, 58 N. Y. 103). II. Although an allowance was made to the successful party on the first trial, the difficult and extraordinary character of the first trial could not, after reversal of the first judgment, be considered by the court upon a motion for an allowance to the same party successful after such a new trial. The order granting an allowance is appealable (Duncan v. DeWitt, 7 Hun, 184 and cases cited; Code § 309; People v. N. Y. Central R. R. Co., 29 N. Y. 418; Hanover Fire Ins. Co. v. Tomlinson, 58 N. Y. 215). E. J. Spink (Culver & Wright, attorneys), for plaintiff, cited, in favor of the taxation by the clerk: Eden v. Wilkes, 1 Cow. 591; Code, §§ 304, 306, 307; Sturgis v. Spofford, 58 N. Y. 103; Ayres v. Western R. R. Corp., 49 N. Y. 660; Hamilton v. Butler, 30 How. Pr. 36; S. C., 4 Rob. 654; Mitchell v. Westervelt, 6 How. Pr. 265—311; Dewey v. Stewart, Id. 465; People ex rel. Clute v. Boardman, 41 N. Y. 362, and cases cited. In favor of granting the allowance: Code § 306; Sturgis v. Spofford, supra; Ayres v. Western R. R. Corp., supra; Dyckman v. McDonald, 5 How. Pr 121; Schwartz v. Poughkeepsie Mut. Fire Ins. Co., 10 Id. 93; Fox v. Gould, 5 Id. 278; Niver v. Rossman, Id. 153; People v. N. Y. Central R. R., 30 Id. 148; Southwick v. Southwick, 49 N. Y. 510. Followed in the next case. Compare Jones v. Williams, L. R. 8 Q. B. 280; S. C., 5 Moak’s Eng. 234. And see Stevens v. Chapman, L. R. 6 Each. 213. This overrules in effect Cochran v. Gottwald, 42 N. Y. Super. Ct. (J. & S.) 214. That was an action for the recovery of the possession of personal property, and the judgment awarded the possession to the defendants and assessed its value. The judgment was entered upon the report of a referee, and it was reversed by the general term with costs to the appellant (plaintiff) to abide the event, and a new trial ordered. Upon the second trial the defendants again prevailed and entered judgment not only for the costs of the new trial, but also for the costs and disbursements taxed on the first. It was held by the general term of the N. Y. superior court that he could not include in his second bill of costs, as a taxable item, the amount adjudged to him for costs by the judgment reversed. As to disbursement for minutes of former trial, see Flood v. Moore, 2 Mb. New Gas. 91. Compare Moulton v. Beecher, 1 Abb. New Cas. 193, 245; Duncan v. DeWitt, 7 Hun, 184; Noyes v. Children’s Aid Soc., 3 Abb. New Cas. 36. [MAJORITY] The Court of Appeals affirmed the order of the general term and held as stated in the head-note. There was no opinion.