Savage v. Allen

2 Thomp. & Cook 474

• Court: New York Supreme Court
• Decided: January 15, 1874
• Status: Published

Opinion

Pee Ctjbiam.

This case, being a suit in equity, was tried before a referee, who gave judgment in favor of the plaintiff, but held that" the respective equities were such that neither party was entitled to recover costs as against the other. Judgment having been entered on the decision, the defendant appealed to the general term, where the judgment was reversed, with costs, to abide the event. From the judgment of reversal plaintiff appealed to the court of appeals, where the judgment of the general term was affirmed, with costs, and final judgment rendered for the defendant under the plaintiff’s stipulation. Costs of "the two appeals have been taxed, and the special term, on motion of the defendant, gave an additional allowance of $400. Judgment has been entered for the costs of the appeals and the allowance, but not for costs of the trial.

It is insisted that the case was not one in which the additional allowance could be given, on the ground that the defendant does not recover general costs, but costs of the appeals only. This position seems to 'be well taken. Clark v. City of Rochester, 29 How. 97; Beale v. Benjamin, id. 101; People v. Central R. R. Co., 30 id. 148; Van Rensselaer v. Kidd, 5 How. 242; Martin v. McCormick, 2 Sandf. 755; Quade v. N. Y. and E. R. R., 11 How. 434; 17 id. 456; Wolf v. Van Nostrand, 2 N. Y. 570.

The order granting the additional allowance must be reversed but without costs of the appeal.

Order reversed.