PILGRIM v. DONNELLY

PILGRIM v. DONNELLY. N. Y. Supreme Court, Second District, Special Term ; October, 1884. Costs on appeal ; amount. The costs of the successful party on a motion for a new trial made upon a case at special term are $60, viz. $20 before argument and $40 for argument. And when such a motion is denied and the moving party appeals from the order denying it as well, as from the judgment, and the order is reversed with costs, or with costs to abide event, the costs are at that rate, notwithstanding he may be entitled to the like sum on his appeal from the judgment. Motion for new taxation of costs. On the first trial, the defendant had a verdict upon which judgment was entered for costs. The plaintiff appealed to the general term from said judgment; he also made a case containing exceptions, upon which a motion was made at special term for a new trial, which was denied, and he appealed from the order denying such motion to the general term. On the appeal the general term reversed the order and judgment and granted a new trial, costs to abide the event. In the special term order, denying a new trial, there was no direction as to costs. On the second trial plaintiff recovered, and included in his bill of costs $20 before argument and $40 for argument on the appeal at general term, and also like sums before and for argument, on the motion for a new trial at special term. The latter items ($20 and $40) the clerk, on motion of defendant, struck out, and the plaintiff made this motion for a new taxation. Groo & Wiggins, for the motion, claimed that under Code Civ. Pro. § 3251, subd. 3, allowing to either party “ upon a motion for a new trial upon a case, . . . the same sums as upon an appeal, as prescribed in subdivision four of this section,” the plaintiff was entitled to the same costs as on the appeal from the judgment (being $60 at special term and $60 at general term), and cited Scudder v. Gori, 28 How. 155 ; Selover v. Wisner, 37 How. Pr. 176 ; Stitt v. Rowley, 37 How. Pr. 179. George W. Greene, for defendant, opposed, contended that to allow the sums claimed was in effect to give double costs, being $60 on appeal from the order, and $60 on appeal from the judgment; also that Code Civ. Pro. § 3239, subd. 2, expressly prohibited the allowance of costs on appeal from the order refusing a new trial, where an appeal is also taken from the judgment. [MAJORITY — Barnard, J.] Barnard, J. Motion for a new trial upon a case is to be heard as upon appeal. When the motion was denied, the defendant was entitled to $20 and $40. The general term reversed the order with costs to abide event. When the plaintiff recovered, he was entitled to the said sums of $20 and $40. Ordered accordingly.