Burdett v. . Lowe

New York Court of Appeals

Burdett v. . Lowe

85 N.Y. 241, 1881 N.Y. LEXIS 76

CourtNew York Court of Appeals

DecidedApril 26, 1881

StatusPublished

Cited by3 cases

This text of 85 N.Y. 241 (Burdett v. . Lowe) is published on Counsel Stack Legal Research, covering New York Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Burdett v. . Lowe, 85 N.Y. 241, 1881 N.Y. LEXIS 76 (N.Y. 1881).

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Opinion

Danforth, J.

There was an excess of words in the undertaking construed in Post v. Doremus (60 N. Y. 371); but eliminating those, the obligation was precisely like that on which this action was brought. The circumstances of the two cases, and the stage of the action at which the prevailing party became entitled to costs, are also the same, and the decision then made must control here. The plaintiffs, therefore, were entitled to recover only such costs as could be taxed against Harris and Jones (the unsuccessful appellants) as costs of appeal to this court. The defendants’ counsel also claims that an offer of judgment was made and that costs of this action should be adjusted accordingly. But that fact does not appear upon the record and cannot be considered.

The judgment of the General and Special Terms should be reversed and a new trial ordered, with costs to abide the event.

All .concur.

Judgment reversed.

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Danforth, J.

There was an excess of words in the undertaking construed in Post v. Doremus (60 N. Y. 371); but eliminating those, the obligation was precisely like that on which this action was brought. The circumstances of the two cases, and the stage of the action at which the prevailing party became entitled to costs, are also the same, and the decision then made must control here. The plaintiffs, therefore, were entitled to recover only such costs as could be taxed against Harris and Jones (the unsuccessful appellants) as costs of appeal to this court. The defendants’ counsel also claims that an offer of judgment was made and that costs of this action should be adjusted accordingly. But that fact does not appear upon the record and cannot be considered.

The judgment of the General and Special Terms should be reversed and a new trial ordered, with costs to abide the event.

All .concur.

Judgment reversed.

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Bluebook (online)

85 N.Y. 241, 1881 N.Y. LEXIS 76, Counsel Stack Legal Research, https://law.counselstack.com/opinion/burdett-v-lowe-ny-1881.

Opinion

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