Smith v. Lehigh Valley Railroad

84 N.Y.S. 1146

Opinion

PER CURIAM.

Order reversed, without costs of this appeal to either party. Motion for rotaxation of costs granted by disallowing costs taxed by plaintiff upon and of the first appeal to this court, .with $10 costs of said motion; otherwise, said motion is denied. Held, that the decision and judgment of this court upon the first appeal, reducing plaintiff’s recovery, was not intended to, and did not, deprive him of the costs awarded for and upon the first trial; also held, that the decision and judgment of this court upon said first appeal that the judgment of the court below, as modified, be “affirmed, without costs,” was not intended to, and did not, deprive plaintiff of the costs awarded in the court below, but related simply to the costs upon said appeal to this court; also held, that the decision of the Court of Appeals that the judgment recovered upon the first trial be reversed, “with costs to abide the event,” entitled plaintiff to tax costs in said Court of Appeals, and also those recovered in Supreme Court upon the first trial, and that, under the circumstances, it must not be assumed that the Court of Appeals by said decision intended to award plaintiff, if successful upon a new trial, costs upon the first appeal to this court, which had been expressly withheld by the decision of this court upon said appeal.

STQVER, J., not voting.