James Shewan & Sons, Inc. v. Union Sulphur Co.

New York Supreme Court

James Shewan & Sons, Inc. v. Union Sulphur Co.

139 Misc. 860, 249 N.Y.S. 518, 1931 N.Y. Misc. LEXIS 1251

DecidedJanuary 11, 1931

StatusPublished

This text of 139 Misc. 860 (James Shewan & Sons, Inc. v. Union Sulphur Co.) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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James Shewan & Sons, Inc. v. Union Sulphur Co., 139 Misc. 860, 249 N.Y.S. 518, 1931 N.Y. Misc. LEXIS 1251 (N.Y. Super. Ct. 1931).

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Opinion

Faber, J.

Defendant’s motion for retaxation of costs denied, with ten dollars costs. The judgment for $15,360.93 was reversed by the Appellate Division because it included interest on the [861]*861amount of verdict, which had not been included by the jury, but added by the court. The reversal was “ with costs to appellant to abide the event.” On the second trial interest was included by the jury and the resultant judgment was $16,013.58. The effect of the quoted words was to give the costs of the appeal to the appellant depending upon the event of the second trial. (Howell v. Van Sicklen, 8 Hun, 524; affd., 70 N. Y. 595.) The second trial resulting in the recovery of a larger judgment because of the inclusion of interest as part of the damages (Walrath v. Redfield, 18 N. Y. 457; Parrott v. Knickerbocker Ice Co., 46 id. 361), the event was that plaintiff was the prevailing party and entitled to costs of both trials. (Belt v. American Central Ins. Co., 33 App. Div. 239.)

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Faber, J.

Defendant’s motion for retaxation of costs denied, with ten dollars costs. The judgment for $15,360.93 was reversed by the Appellate Division because it included interest on the [861]*861amount of verdict, which had not been included by the jury, but added by the court. The reversal was “ with costs to appellant to abide the event.” On the second trial interest was included by the jury and the resultant judgment was $16,013.58. The effect of the quoted words was to give the costs of the appeal to the appellant depending upon the event of the second trial. (Howell v. Van Sicklen, 8 Hun, 524; affd., 70 N. Y. 595.) The second trial resulting in the recovery of a larger judgment because of the inclusion of interest as part of the damages (Walrath v. Redfield, 18 N. Y. 457; Parrott v. Knickerbocker Ice Co., 46 id. 361), the event was that plaintiff was the prevailing party and entitled to costs of both trials. (Belt v. American Central Ins. Co., 33 App. Div. 239.)

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Bluebook (online)

139 Misc. 860, 249 N.Y.S. 518, 1931 N.Y. Misc. LEXIS 1251, Counsel Stack Legal Research, https://law.counselstack.com/opinion/james-shewan-sons-inc-v-union-sulphur-co-nysupct-1931.

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