Murtha v. Curley

64 How. Pr. 222

• Court: The Superior Court of New York City
• Decided: December 15, 1882
• Status: Published

Opinion

Arnoux, J.

This is a question of considerable importance to the profession. The practice of this court has always been on a reversal to make the order read “ with costs to the appellant to abide the event.” In this case the respondent instead of submitting to a new trial, stipulated and appealed to the court of appeals, and was there successful. In view of tills result the order of the general term should be construed to mean that the costs were to be given to the successful party on that appeal. This proved to be the respondent, and he should tax the costs. This is in furtherance of justice, for if the respondent had taken a new trial, he would have' ultimately taxed a much larger bill of costs than he has done. The clerk will allow the items of costs at the general term, as if they had in terms been awarded to the appellant in the court of appeals. As this appears to be a new question, no costs of this motion are allowed.