Sweet v. Chapman

53 How. Pr. 253

Opinion

Hardin, J.

A trial is defined to be “ the judicial examination of the issue.” An argument takes place prior to a judicial decision of the issues in a case. There had been an argument and decision. Costs were allowable, and properly taxed and paid. They were paid “for argument of the appeal,” the judgment was affirmed, the costs paid, and, of course, the plaintiff satisfied.

But upon defendant’s application a reargument was ordered. He it was who imposed the labor of a reargument that took place, and the court thereupon reversed the judgment and ordered a new trial, with costs to abide the event. The court expressly ordered the costs to abide. That, of course^ covered statutory costs to the successful party.

By subdivision 1 of section 306 of the Code, the costs of an appeal are in the discretion of the court when a new trial is ordered. The discretion was, therefore, properly exercised by the general term when it reversed the judgment and ordered a new trial. The plaintiff would have no compensation for the reargument if this item was not allowed (3 Den., 259, and note; 1 How., 236; 2 Hill, 357).

The motion must be denied, but as the question is novel, without costs of the motion to either party.