Murtha v. Curley

64 How. Pr. 465

• Court: The Superior Court of New York City
• Decided: January 15, 1883
• Status: Published

Opinion

Truax, J.

The order of the general term limited the recovery of the costs of the general term to the defendant Curley, who was the successful party on the appeal to the general term, only in the event that he should finally succeed in the action. The general term had the power to reverse the judgment, with costs to abide the event, in which event the party finally succeeding in the action would have been entitled to tax the costs of an appeal or trial at which he had been beaten (84 N. Y., 469).

The costs to be awarded upon the granting of a new trial are in the discretion of the general term, and may be awarded to either party absolutely, or to abide the event (Code of Civ. Pro., sec. 3238.)

In this case the general term saw fit to award the costs of the appeal to the defendant Curley. It did not award them to the plaintiff. The plaintiff could not have them in any event, because he did not maintain the judgment in his favor (Howell agt. Van Sicklen, 8 Hun, 525). It is true that the court of appeals reversed the judgment of the general term, “ with costs,” but the words “ Avith costs ” in the order of the court of appeals means the costs in that court (68 N. Y., 628).

The order of the special term should be reversed, with ten dollars costs of the appeal and disbursements, and the taxation of the clerk should be affirmed.