
    PABST v. SCHWARTZSTEIN.
    Argued January 20, 1925
    Decided February 4, 1926.
    Costs—Rule to Show Cause—When New Trial is Granted in Consequence of an Error or Mistake of a Judge at Circuit, Costs of the Former Trial as Well as the Costs on Motion for a New Trial Shall Abide the Event of the Suit.
    On motion to award costs.
    Before Justices Parker, Minturn and Black.
    For the plaintiff, Abraham Levitan.
    
    For the defendant, Pesin & Pesin.
    
   Per Curiam.

Plaintiff asks for costs of his rule to show cause after succeeding thereon, going to second trial, and receiving an adverse verdict thereon.

The complaint was in two counts. At the first trial, on one count plaintiff had a verdict which he claimed was inadequate ; on the other count he was nonsuited. We discharged the rule as to the alleged inadequacy, but considered the non-suit erroneous, and directed a new trial as to the count on which nonsuit was directed. At the second trial plaintiff went to the jury, who found for defendant.

We see no reason for departing from the rule laid down in a similar ease entitled “Anonymous ,” in 16 N. J. L. (1 Harr.) 496. This court said: “The rule as to costs in such cases, and in all others in which a new trial is granted, in consequence of an error or mistake of the judge at the. Circuit, is that the costs of the former trial, as well as the costs of the proceedings here on the motion for a new trial, shall abide the event of the suit.”

It follows that award of costs should be denied.  