Henry J. Washburn, Respondent, v. John T. Rainier and Paul N. Lineberger, Appellants, Impleaded with The Rainier Company and Viola C. Rainier, Defendants

Henry J. Washburn, Respondent, v. John T. Rainier and Paul N. Lineberger, Appellants, Impleaded with The Rainier Company and Viola C. Rainier, Defendants. Second Department, March 20, 1914. Costs — provision of order of reversal “with costs of the action to abide the event,” construed. Provision of an order to the effect that the judgment appealed from be reversed, “with costs of the action to abide the event,” read in connection with a subsequent order of resettlement, and held, that the only costs and disbursements to be paid were those which had accrued in the interval between the date of the original order of reversal and the resettlement thereof. These were taxable costs in the Court of Appeals before argument and proper disbursements in connection with the appeal. Appeal by the defendants, John T. Rainier and another, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Nassau on the 6th day of February, 1914, as resettled by an order entered in said clerk’s office on the 1th day of February, 1914, denying their motion for a readjustment of costs. T. G. Durkan, for the appellants. Jesse Fuller, Jr., for the respondent. [MAJORITY — Per Curiam:] Per Curiam: When the provision of the original order of this court of March 15, 1912, to the effect that the judgment appealed from be reversed, “with costs of the action to abide the event,” is read in connection with the order of this court of December 12, 1913, resettling the same, it seems to us perfectly clear that upon such resettlement it was the purpose of this court to permit plaintiff, if he desired, to retrace the steps which he had taken upon the strength of the form of the order as originally entered, and to compensate him for any expense that he had incurred by reason thereof. Bearing this in mind, it is equally clear that the only costs and disbursements that were to be paid were those which had accrued in the interval between the date of the original order of reversal and the resettlement thereof. These were taxable costs in the Court of Appeals before argument, and such disbursements in connection with such appeal as would be properly taxable, and which had been made up to that time. The order appealed from should be reversed, with ten dollars costs and disbursements, the appeal from the taxation of costs sustained, and the motion granted to strike out all of the costs as taxed, except costs in the Court of Appeals before argument, and disbursements for printing the case in the Court of Appeals and printing the points. Jenks, P. J., Burr, Thomas, Carr and Putnam, JJ., concurred. Order reversed,- with ten dollars costs and disbursements; the appeal from the taxation of costs sustained, and the motion granted to strike out all of the costs as taxed, except costs in the Court of.Appeals before argument, and disbursements for printing the case in the Court of Appeals and printing the points.