
    Peter Brennan, Appellant, v. Adrian H. Joline and Douglas Robinson, as Receivers of the Metropolitan Street Railway Company, Respondents.
    (Supreme Court, Appellate Term,
    February, 1911.)
    Costs: Amount — Fees of witnesses and jurors — Stenographer’s fee — Costs on appeal—Amount and items—Appeal from orders generally.
    Where, upon appeal from an order of the City Court of the city of New York granting plaintiff a new trial on the ground of newly discovered evidence, the order is reversed with costs and disbursements, the defendants are entitled as a matter of right to tax the same costs in the lower court which they would have been entitled to tax had they succeeded in that court and plaintiff’s motion been denied, i. e., twenty dollars before argument and forty dollars for argument.
    The right of the defendants to tax such costs is not affected by the fact that in taxing them the defendants termed them costs “ upon appeal to the Appellate Term.”
    In such a case, where after a motion for a new trial on the judge’s minutes it was stipulated that a copy of the case made and settled for such motion might be used on a motion for a new trial on the ground of newly discovered evidence, a copy of the stenographer’s minutes was unnecessary for the latter motion and the charge therefor should' not be taxed as a disbursement.
    Appeal by plaintiff from an order of the City Court of the city of 3STew York denying plaintiff’s motion for a relaxation of costs.
    Winifred Sullivan, for appellant.
    Masten & Eickols, for respondents.
   Hendrick, J.

The defendants obtained a judgment in the City Court, rendered upon the verdict of a jury. Subsequently the plaintiff moved for a new trial upon the ground of newly discovered evidence. This motion was granted and an order entered on April 20, • 1910, The -defendant appealed to this court and the order was reversed “ with costs and disbursements.” Thereupon defendants’ counsel caused ■a bill of costs to be taxed in .the City Court, the disputed items thereof consisting of “ appeal to the Appellate Term before argument $20. Appeal to the Appellate Term for argument $40.” They also taxed as for disbursements “paid copy stenographer’s minutes $14.70.” The plaintiff objected to the allowance of the foregoing items and made a motion for a relaxation thereof which was denied, and from the order denying such motion this appeal comes up.

The claim of the appellant is that all the items thus taxed were improperly allowed for the following reasons: “ First. They could not he taxed .a® costs of the appeal to the Appellate Term because, by section 3261, subdivision 4 of the Code of Civil Procedure, the costs of such an appeal are limited to $70. Second. They could not be taxed as motion costs because, a, the costs awarded by the Appellate Term were limited to costs of the appeal; b, the costs at Special Term were in the discretion of the court; neither party was entitled to them as a matter of right, and neither party was awarded them. The item of, $14.70 was improperly allowed, because it was not a disbursement made on or rendered necessary by the motion for a new trial, or the appeal from the decision on that motion.”

That the items of twenty dollars before argument and forty dollars for argument could not be taxed as costs “ upon appeal ” is undoubtedly true. Subdivision 3 of section 3261 of the Code of Civil Procedure provides that, “ Upon a motion for ia new trial, upon a case,” the same sums shall be allowed as costs, “ as upon an appeal, as prescribed in subdivision fourth of this section.” That a motion for a new trial upon the ground of newly discovered evidence must be made upon a “ case ” there is no question. David v. Grand Rapids Fire Ins. Co., 5 App. Div. 36, 38. Subdivision 4 referred to was amended in 19'02. Laws of 1902, chap. 616. Prior to that time, by the terms of that section, the sums of twenty dollars and forty dollars were allowed “ to either party upon an appeal to the Supreme Court from an inferior court.” By the amendment there was inserted in that section after the words “ an inferior court,” the words, “ excepting upon an appeal to the Supreme Court from the City Court of the City of ¡New York.” This amendment was made at the time the General Term of the City Court was abolished, and the evident intent of the Legislature was to limit the successful party, upon the denial of a motion for a new trial upon the ground of newly discovered evidence, to costs upon such motion and that, upon appeal from an order of that character, no coats should be allowed in the appellate court other than the usual ten dollars costs given upon reversal or affirmance of orders.

In the case at bar, motion costs could not have been allowed ■to the defendants in -the lower court, until they became entitled thereto 'by reason of being the successful parties; and, therefore, they could tax no costs until they had succeeded upon appeal in reversing the order of the lower court. The plaintiff was successful in the City Court and obtained an order granting a new trial upon the ground of newly discovered evidence; and in such cases the imposition of the costs of a former trial is usually imposed. Comstock v. Dye, 13 Hun, 113. Upon appeal, however, the order was reversed; and the defendants thereby became entitled to the same costs in the lower court as they would have been entitled to tax had they succeeded in that court and plaintiff’s motion been denied, viz., twenty dollars before argument and forty dollars for argument. Code Civ. Pro., § 3251, subd. 4. That in taxing such costs the defendants termed them costs upon •appeal to the Appellate Term ” in no way affected the defendants’ right to those items taxed. The appellant’s claim that such costs were in the discretion of the 'Special Term, that neither party was entitled to them as a matter of right and neither was awarded them, is not well taken. As to whether a party is entitled to such costs as a matter of right there cannot be much doubt. In the case of Grand Rapids Fire Ins. Co., supra, the case does not discuss the question whether motion costs- are in the discretion of the court or not, but a reference to the printed ease on appeal shows that the motion for a new trial was denied, and the original order granted ten dollars costs. Later an order was granted striking out all reference to costs, and plaintiff taxed sixty dollars costs as a matter of right. The Special Term and the Appellate Division sustained the 'decisión of the clerk. Milliman, Costs, 92, note. It was held in Roberson v. Rochester Folding Box Co., 68 App. Div. 528, that the' court had no discretion to change the amount of such allowance as fixed by statute.” See also Stitt v. Rowley, 37 How. Pr. 179. The appellant’s counsel evidently appreciates the fact that such costs were "allowed in the lower court as motion costs, as she states in her brief that they were “ apparently allowed as motion costs at the Special Term on plaintiff’s motion for a new trial.” The term “ costs and disbursements,’’ in the order of this court, had no reference to the motion costs and simply indicated that the appellants were entitled to such costs upon appeal as are provided by statute which in the case at bar were ten dollars. So that in.fact the defendants did not tax the full amount of costs to which they were entitled. -Section 3226 of the Code of Civil Procedure has no application "to -a case of this kind, as that section simply provides that “ costs upon a motion in an -action, where the costs thereof are not specifically regulated in -this act * * * -are in the discretion of the court.” As we have seen, costs upon a motion where a case is made are “ regulated by this act.” It follows that the taxation of the item of twenty dollars before argument -and of forty dollars for argument was proper.

I do not think, however, that the item of fourteen dollars and seventy cents for stenographer’s minutes should have been 'allowed. The attorneys for the respective parties, at the time the motion was made for a new trial, had stipulated as follows: “ It is hereby stipulated and consented that, on any motion made by plaintiff for a new trial of this action on the ground of surprise or newly discovered evidence, -a copy of the case made and settled for the purpose of plaintiff’s appeal from the judgment and order denying motion for a new trial on the minutes heretofore entered herein -may he submitted to the court and used for the purposes of said motion and any appeal from the decision thereon.” It is stated in appellant’s brief, and not disputed, that the ease on appeal from the judgment had been made and settled on the day this stipulation was made. The stipulation recites that the case made on the appeal from the judgment may be used “ for the purposes of said motion.” It is clear, therefore, that a copy of the stenographer’s minutes was unnecessary for use upon the motion made herein and such sum should not have been allowed.

Order modified by striking therefrom the sum of fourteen dollars and seventy cents costs taxed as for stenographer’s minutes and, as modified, affirmed, without costs. '

Lehman and Delany, JJ., concur.

'Order modified, and, as modified, affirmed, without costs.  