
    Robert W. Elliott et al., Appellants, v. Charles H. Luengene, Respondent.
    (City Court of New York,
    General Term,
    February, 1897.)
    Costs — Effect of reversal of judgment with costs to appellant to abide event. “
    An order of the Common Pleas reversing a City Court judgment and directing a new trial “ with costs to the appellant to abide the event,” includes the costs in the trial court as well as the costs on the appeal, and the respondent, upon prevailing oh the second trial, is not entitled to tax the costs of the first.
    Starr Cash Car Co. v. Reinhardt, 6 Mise, Rep. 365, followed.
    Appeal from an order granting the defendant’s motion for a review of the clerk’s. taxation and striking from the plaintiffs’ bill of costs the costs and disbursements of the first trial of this action.
    A. Kling, for appellants.
    Jacob Eromme, for respondent.
   O’Dwyer, J.

The action was tried and resulted in a judgment in-favor of the plaintiffs and upon appeal therefrom that judgment was reversed and a new .trial ordered,, “with costs to the appellant to abide the event.”

A new trial was had and again resulted in favor of the plaintiffs. The only question presented for our determination is one relating to the costs awarded by the decision of the General Term upon the appeal from the judgment on the first trial.

The plaintiffs contend that having succeeded in the action they are entitled to tax the .costs of the first trial and insist that the “ costs to the appellant to abide the event,” upon the reversal of the judgment on the first trial, relate to the costs of the.appeal only. '

It was so held in Howell v. Van Siclen, 8 Hun, 524; affirmed in the Court of Appeals, 70 N. Y. 595, and we would follow the decision in that case were it not for the fact that the Court of Common Pleas at General Term (our appellate tribunal), in Starr Cash Car Co. v. Reinhardt, 6 Misc. Rep. 365; 26 N. Y. Supp. 746, have laid down a different rule.

It was there held that an order reversing a judgment and directing a new trial, “ with costs to the appellant to abide the event,” included the costs in the trial court as well as the costs upon appeal, and where the respondent prevails on the new trial, the costs mentioned in the order of reversal cannot be taxed.

We are compelled to follow the decision of our appellate court, and upon authority of the case cited the. order appealed from should be affirmed, with costs.

Van Wyck, Ch. J., concurs.

Order affirmed, with costs.  