Newman v. Benedict

129 N.Y.S. 389

• Court: Appellate Terms of the Supreme Court of New York
• Decided: May 18, 1911
• Status: Published

Opinion

GUY, J.

Defendant appeals from an order retaxing the defendant’s costs, so as to include only $10 motion costs, and the costs of the Appellate Term on the prior appeal, which resulted in the reversal and vacation of the irregular judgment, which costs the clerk taxed in defendant’s favor.

The plaintiff entered an order of reference, which was reversed, and the reference vacated, by this court. Pending the appeals, he forced the defendant to trial before the erroneously appointed referee, and procured a judgment on the merits. On appeal this judgment was “reversed, with costs to the appellant.” The action is still pending and undecided. The reversal was in legal effect a vacating of the irregular judgment, not an award of final judgment. The authorities holding that an award of final judgment carries with it all costs to date do not apply on a vacatur for illegality or irregularity. Otherwise, both sides might recover. the same costs, which is legally impossible. . '

The order should be affirmed, with $10 costs and disbursements. All concur.