Mary Miller, Respondent, v. City of Buffalo and International Railway Company, Appellants

Mary Miller, Respondent, v. City of Buffalo and International Railway Company, Appellants. Fourth Department, January 6, 1909. Court — appeal from. Municipal Court, city of Buffalo — new trial in Supreme Court — effect on judgment of court below — costs of prior trial to abide event — when taxation premature. When an appellant has perfected an appeal from the Municipal Court of the city of Buffalo under section 553 of Buffalo charter, added in 1908, demanding a new trial in the Supreme Court, the action is immediately removed to that court, although the cause is not yet at issue in the appellate court owing to the fact that ten days have not elapsed since the filing of the return of the lower court as provided by section 3071, Code Civil Procedure. On the perfecting of such appeal there remains no judgment in the lower court effective as a determination of the issues involved. Where, on a prior appeal from a nonsuit granted by the Municipal Court of Buffalo, the Appellate Division granted a new trial, with costs in all courts to the plaintiff “to abide the event,” the event which will give a right to tax such costs is a determination in the plaintiff’s favor on a new trial sufficient to entitle her to the costs of the new trial. Hence, where a second trial in the Municipal Court resulted in a judgment for the plaintiff, but the defendant has perfected an appeal therefrom asking a new trial and the same has not yet been had, the plaintiff is not entitled, under the prior order, to tax costs, as the event “entitling” her thereto has not yet occurred. Appeal by the defendants, the City of Buffalo and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 24th day of June, 1908, pursuant to an order entered in said clerk’s office.on the same day, and also from the said order. Frederic C. Rupp and Louis F. Desbecker, for the appellant City of Buffalo. Dana L. Spring, for the appellant International Railway Company. John T. Ryan and Stephen V. O'Gorman, for the respondent. [MAJORITY — Robson, J.:] Robson, J.: This action had its origin in the Municipal Court of the city of Buffalo. The first trial in that court resulted in a nonsuit, which was affirmed on appeal to the Erie Special Term of the Supreme Court. On appeal to this court the judgments of the Special Term and Municipal Court were set aside and a new trial in the Municipal Court directed, with costs in all the courts to the plaintiff to abide the event. (Miller v. City of Buffalo, 126 App. Div. 923.) On the new trial plaintiff had judgment, June 20, 1908, against both defendants for $250 damages and $30.10 court and statutory costs of that trial. A transcript of this judgment was filed in the clerk’s office of Erie county June 23, 1908. On June 24, 1908, both defendants duly perfected an appeal from the" judgment of the Municipal Court to the Supreme Court, Erie county, and demanded a new trial therein. On the same day, but after this appeal by defendants had been perfected, plaintiff obtained the order and entered the judgment, from which this appeal is taken. The statute regulating appeals from judgments of the Municipal Court of Buffalo, in force when the appeal from the judgment of that court was taken, provides, among other things, that appeals may be had from judgments of said court to the Supreme Court, Erie county, upon questions of fact or of law in the same manner and with like effect as appeals are now had by law to the County Court from Justices’ Court judgments. (Laws of 1908, chap. 387, adding to Buffalo charter [Laws of 1891, chap. 105], § 552.) There is no question but that prior to the granting and entry of the order and judgment now appealed from defendants had both properly perfected an appeal to the Supreme Court, Erie county, from the Municipal Court judgment which entitled them to a new trial of the action in the Supreme Court. The effect of this appeal upon the judgment of the Municipal Court is like that upon a judgment of a Justice’s Court when an appeal is perfected by which an appellant is entitled to a new trial in County Court. (Buffalo charter, §§ 552, 554, as added supra.). When defendants had perfected their appeal to the Supreme Court the action was at once removed to that court, although the ten days provided for by section 3071 of the Code of Civil Procedure after filing the return of-the lower court before the action shall he deemed at issue in the appellate court had not expired. (Cutting v. Jessmer, 101 App. Div. 283.) The appeal having been perfected there remained no judgment in favor of plaintiff effective for any purpose as a determination of the issues involved' in the action. (Burns v. Howard, 9 Abb. N. C. 321, 324; Crandell v. Bickerd, 32 Misc. Rep. 258, 261.) On the first appeal to this court plaintiff was awarded costs in all courts to abide the event. The event which was to determine her right to tax these costs against defendants was such a determination in her favor as a result of the new trial of the issues involved in the action as would entitle her to costs of the new trial. (Snyder v. Collins, 12 Hun, 383; New v. Anthony, 4 id. 52; First National Bank of Meadville v. Fourth National Bank of New York, 84 N. Y. 469; Carpenter v. Manhattan Life Assurance Co., 24 Hun, 194.) But the new trial had in Municipal Court has not resulted in any effective or enforcible determination of the action. The action itself has not yet eventuated: No new trial has been had by which it has in any proper sense of the expression been determined. The “ event ” entitling plaintiff to tax the costs awarded on the former appeal has not yet occurred. It follows that the order and judgment awarding those costs was premature and should be reversed, with costs. All concurred, except Spring, J., not sitting. Judgment and order reversed, with costs.