JENNINGS et al. v. BURTON

JENNINGS et al. v. BURTON. (Circuit Court, S. D. New York. February 14, 1910.) Costs (§ 2(56) — Costs on Api’cai. — Effect of Determination on New Trtat.. Where plaintiffs recovered a judgment, which was reversed on writ of error, with costs to the plaintiff in error, the appellate court declining to modify the mandate by directing that the costs should abide the event, and they were thereupon paid, and the plaintiff prevailed on a second trial, he is not entitled to tax as a disbursement the amount paid in settlement of the judgment for costs of the first appeal. [Ed. Note. — For other cases, see Costs, Cent. Dig. §§ 1009-1010; Dec. Dig. $ 200.*] Action by Curtis M. Jennings and another against James H. Burton. On appeal from the clerk on taxation of costs. Affirmed. Hyland & Zabriskie, for plaintiffs. Appell & Taylor, for defendant. For other cases see same topic & § k&hbuti in Dec. & Am. Digs. 1007 to date, & Rep’r Indexes [MAJORITY — LACOMBE, Circuit Judge.] LACOMBE, Circuit Judge. In this case plaintiffs recovered a judgment on the first trial. A writ of error was sued out by defendant, and the Court of Appeals reversed the judgment for error on the trial, with costs of such appeal to plaintiff in error. The costs were subsequently taxed, and judgment absolute was entered for the amount in this court; the court declining to modify the mandate by directing that they should abide the event. They were thereupon paid. , On a second trial, plaintiff prevailed, and is now about to enter judgment. He asks to be allowed to tax as a “disbursement,” to be included with his costs, the sum he paid in settlement of the judgment for costs of the first appeal. Reference is made to Hamilton v. Aslin, 3 Watts (Fa.) 222; but I am satisfied that there is no authority for the practice in this court. The appellate tribunal imposed costs for error committed on the trial, for which defendant in error must be held responsible, and to allow reimbursement in the way suggested would practically be to annul its decision. I have consulted with the other Circuit Judges before filing this memorandum. The clerk’s decision as to certain witness fees is correct. Taxation affirmed.