First National Bank v. Fourth National Bank

New York Court of Appeals

First National Bank v. Fourth National Bank

60 How. Pr. 436, 84 N.Y. 469

CourtNew York Court of Appeals

DecidedMarch 15, 1881

StatusPublished

Cited by11 cases

This text of 60 How. Pr. 436 (First National Bank v. Fourth National Bank) 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

First National Bank v. Fourth National Bank, 60 How. Pr. 436, 84 N.Y. 469 (N.Y. 1881).

Pincite

Opinion

Andrews, J.

The plaintiff is entitled to tax the costs of the appeal to this court. The first judgment was reversed, with costs to abide the event. The event of the new trial Was the circumstance which was to determine which party [437]*437should recover the costs of the appeal. The order did not limit the recovery of costs to the prevailing party on the appeal in case he should finally succeed in the action.

Appeals are often taken for technical errors which do not affect the merits, and although the appellant is successful, the effect of such appeals in many cases is simply to protract and increase the expense of the litigation. There is generally no injustice in awarding costs on the appeal to the party who shall finally recover.

It is contended that the plaintiff is entitled to tax the costs of both trials; and this is the undoubted practice, although .the first judgment in his favor was erroneous. In analogy he should be allowed to tax the costs of the appeal. The terms on which a new trial is granted, as respects costs, are within the discretion of the court. We have often limited the .recovery of costs on appeal to one of the parties, but where the order reversing a judgment and granting a new trial is made, with costs to abide the event, without other limitation, we understand that the party finally succeeding in the action is entitled to tax them. This construction was put upon a similar order in Koon agt. Thurman (2 Hill, 357). In Union Trust Co. agt. Whiton (78 N. Y., 491) we refused to interfere with the construction given by the general term of the first department to its own order. The question here is as to the construction of our order.

The order of the special and general terms should be reversed, and the taxation by the clerk should be affirmed.

All concur, except Rapallo, J., absent.

Free access — add to your briefcase to read the full text and ask questions with AI

Andrews, J.

The plaintiff is entitled to tax the costs of the appeal to this court. The first judgment was reversed, with costs to abide the event. The event of the new trial Was the circumstance which was to determine which party [437]*437should recover the costs of the appeal. The order did not limit the recovery of costs to the prevailing party on the appeal in case he should finally succeed in the action.

Appeals are often taken for technical errors which do not affect the merits, and although the appellant is successful, the effect of such appeals in many cases is simply to protract and increase the expense of the litigation. There is generally no injustice in awarding costs on the appeal to the party who shall finally recover.

It is contended that the plaintiff is entitled to tax the costs of both trials; and this is the undoubted practice, although .the first judgment in his favor was erroneous. In analogy he should be allowed to tax the costs of the appeal. The terms on which a new trial is granted, as respects costs, are within the discretion of the court. We have often limited the .recovery of costs on appeal to one of the parties, but where the order reversing a judgment and granting a new trial is made, with costs to abide the event, without other limitation, we understand that the party finally succeeding in the action is entitled to tax them. This construction was put upon a similar order in Koon agt. Thurman (2 Hill, 357). In Union Trust Co. agt. Whiton (78 N. Y., 491) we refused to interfere with the construction given by the general term of the first department to its own order. The question here is as to the construction of our order.

The order of the special and general terms should be reversed, and the taxation by the clerk should be affirmed.

All concur, except Rapallo, J., absent.

Cite This Page — Counsel Stack

Bluebook (online)

60 How. Pr. 436, 84 N.Y. 469, Counsel Stack Legal Research, https://law.counselstack.com/opinion/first-national-bank-v-fourth-national-bank-ny-1881.

Opinion

Related

Cite This Page — Counsel Stack