
    ISAACS v. NEW YORK PLASTER WORKS.
    
      N. Y. Superior Court; General Term,
    January, 1878.
    Costs. —Appeal. —Taxation.
    Costs for proceedings - before trial, including those after notice, and term fees, are not lost by the reversal of the judgment awarding them, if the party obtaining reversal is finally liable to costs, whether nominally successful or not.
    The rule in' Howell Van Siclen (p. 1 of this vol.), applies equally where on the new trial the party chargeable with costs is so chargeable because he recovers only nominal damages.
    Thus where on the first trial the complaint was dismissed, and defendant entered judgment for costs, which was affirmed with costs at general term; but on appeal to the court of appeals the judgment was reversed and a new trial ordered with costs to abide event; and on the new trial plaintiff recovered only nominal damages, thereby entitling defendant to costs;—Held, that defendant was entitled to tax his costs before the first trial, and those of the first trial, those of both appeals, and thosé of the new trial.
    Appeal by defendants from an order affirming tax ation of costs.
    
      Gustavus Isaacs sued the Hew York Plaster Works for the recovery of damages for breach of contract, and .the issues were tried twice.
    On the first trial plaintiff’s complaint was dismissed, and defendant entered judgment for costs, which was affirmed, with costs, at general term.
    On plaintiff’s appeal the court of appeals reversed the judgment and ordered a new trial with costs to abide the event, which was made the judgment of this court.
    On the second trial the jury, upon all the issues, rendered a verdict for plaintiff for six and one quarter cents, which entitled the defendant to the costs of the action.
    The clerk, in adjusting such costs, disallowed all items prior to the costs of the court of appeals, and the taxation having been affirmed at special term, defendant appealed.
    
      F. E. Dana (Dana & Clarkson, attorneys), for appellant.
    I. The verdict being for nominal damages, entitled defendants to costs, and no application to the court for leave tax costs or enter judgment by them was necessary (Fuller v. Conde, 47 N. Y. 894; Powers v. Gross, 66 Id. 646, affi’g 6 Hun, 284; Lultgor v. Walters, 64 Barb. 417).
    II. The clerk clearly erred in disallowing the items : Costs before notice of trial, $10 ; costs after notice of trial, $15 ; on calendar five terms, from June, 1873, to Dec., 1874, $50. These items were not costs of the first trial, in any sense ; but were costs in the cause which the party, eventually prevailing, was entitled to tax (Howell v. Van Siclen). He also erred in refusing to allow the trial fee in Dec., 1874. The Code allows the prevailing party $30 on every trial of an issue of fact (Code, § 307, subd. 4; 3 Wait's Pr. 485; Hamilton v. Butler, 4 Robt. 654; Spring v. Day, 44 How. 390).
    III. The clerk erred in striking out any of the costs of the first trial and at general term, because they had become costs in the cause, and by statute belonged to the prevailing party (Code, §§ 304, 305, 307; Sturgis v. Spofford, 58 N. Y. 103; Same v. Same, 3 Hun, 52, 57; Howell v. Van Siclen, above cited; Lumbard v. Syracuse, &c. R. R., 62 N. Y. 290; Bathgate v. Haskins, 63 Id. 261; Koon v. Thurman, 2 Hill, 357; Von Kellar v. Schulting, 45 How. Pr. 139; Patten v. Stitt, 2 J. & S. 346. If be urged that the judgments giving these costs to defendants have been reversed, the answer is that the verdict of the second trial entitles them to the costs that have accrued in all prior proceedings in the action. There was no judgment in the case of Sturgis v. Spofford (supra), giving costs to defendants; and in Howell v. Van Siclen (supra), the judgment awarding such costs to plaintiff had been reversed, but the fact that they prevailed in the action, it was held, entitled them to costs, including all the costs of all proceedings except where the court had rightfully made a different disposition of the costs on appeal (Van Wyck v. Baker, 11 Hun, 309).
    IV. The defendants are also entitled to the costs of the first trial and at general term, because, by the judgment of the court of appeals, the costs were made to abide the event of the action. First. It is the general rule on granting a new trial, in this and other courts, to direct the costs to abide the event. In some cases in this court the direction has been with costs of appeal and of the trial, to abide the event (Jacobsohn v. Belmont, 7 Bosw. 14; Robbins v. Hudson R. R., Id. 1; Kennedy v. Harlem R. R., 3 Duer, 659; Butterworth v. Worth, 7 Bosw. 626). It is also certain that where such direction has been given by the general term, the party succeeding on the second trial, or eventually in the action, is entitled to the costs of the first trial and at general term (Patten v. Stitt, 34 Super. Ct. [2 J. &. S] 346; Van Wyck v. Baker; 11 Hun, 309; Benedict v. Johnson, 2 Lans. 94; North v. Sargent, 14 Abb. 223). Second. In Patten v. Stitt, above cited, Judge Freedman, giving the opinion of the court, says : “In Gosling v. Acker, it was held that a party ultimately successful will have costs of the trial below, on the principle that the appellate court gives such judgment as the court below should have given, and that such judgment carries costs.” This case was reversed in the court of appeals .(50 N. Y. 591), which held that in an equity action where a verdict for plaintiff has been set aside and a new. trial ordered, with costs to abide the event, and the plaintiff appealed to the court of appeals, where the judgment was affirmed, and on the plaintiff’s stipulation judgment absolute was rendered against him without costs, such judgment disposed of all the costs in the action, and neither party was entitled thereto. Third. The judgment of the court of appeals has been made and become the judgment of this court; and, by it the costs were made to abide the event of the action. If the costs of the first trial and general term belong by statute to the prevailing party, then defendants, having succeeded, are entitled to them. If they are in the discretion of the court, then by this judgment they are given to defendant. The costs of the first trial and of general term have once been adjudged to defendants ; if it be claimed that these judgments have been reversed, then the judgment of the court of appeals stands in place of them and directs such costs to abide the event (Lumbard v. Syracuse R. R., 62 N. Y. 290, 293; Bathgate v. Haskins, 63 Id. 261, 264).
    V. The decision of the court below is not sustained by Cochran v. Gottwold, 42 Super. Ct. (10 J. & S.) 442 (see S. C., 9 Id. 317, and 8 Id. 442).
    
      VI. It has been the practice always, where a judgment has been reversed in the court of - appeals and a-hew trial ordered, with costs to abide the event, to allow to the party eventually prevailing the costs of all preceding trials and. arguments at general term and in the court of appeals, and no case can be found where it-is held that the prevailing party is not entitled to such costs (Justice v. Lang, 42 N.Y. 493 ; 52 Id. 323 ; 63 Id. 633 ; Hunt v. Chapman, 51 Id. 555 ; 62 Id. 333 ; Fisher v. Mayor, 3 N. Y. W. Dig. 476; Glannis v. Black, 4 Id. 43; Baird v. Daly, Id. 213 ; Baker v. Drake, 3 Id. 566). In all these cases costs of all previous trials and arguments were allowed.
    
      G. A. Seixas, for plaintiff, respondent.
    It seems absurd in principle that costs which arise or grow due. only by virtue of a judgment, nevertheless continue to be due after the' judgment is absolutely vacated and reversed. If the defendant is right, this plaintiff pays costs of defendant’s erroneous and reversed proceedings, and the defendant receives costs of proceedings properly, and necessarily taken to correct defendant’s errors (citing Cochran v. Gottwald, 42 Super. Gt. [8 J. & S.] 442).
    
      
      Reported at p. 1 of this vol.
    
   Freedman, J.

The taxation is sought to be upheld under the decision of this court in Cochran v. Gottwald, 42 N. Y. Super. Ct. (10 J. & S.) 214, where it was held that a defendant, on again succeeding upon a new trial, was not entitled to. include in his judgment the aggregate amount of the costs and disbursements inserted in the first judgment, because the reversal, of the judgment carried with it a reversal of the' bill of costs as 'taxed.

But in the case at bar the defendant presented the items and claimed their allowance as just and proper ones. They must therefore be considered on their merits.-

When thus considered it becomes at once apparent that the defendant had a clear right to the following, viz.: Costs before notice of trial, $10 ; costs after notice of trial, $15; five term fees from June, 1873 to Dec., 1874, $50.

These items were not in any sense costs of the first trial, but costs in the cause which the party eventually prevailing was entitled to tax, and as no further claim for any such, item or items was made on account of the second trial, their disallowance was erroneous.

The remaining disputed items consist of a trial fee, for, and defendant’s disbursements on, the first trial, and the costs and disbursements awarded by the general term. These were all once adjudged to the defendant, but the judgments were reversed by the court of appeals, with costs to abide the event.

In Cochran v. Grottwald (supra), it was said upon a somewhat similar state of facts, that costs could not be taxed by a party for proceedings that had been vacated for error in his favor, and that the statutory right of a party to costs attached only to such proceedings as are regular on his part. And indeed it is difficult to perceive upon what principle a party finally prevailing should be allowed not only the costs necessarily incurred to gain the final victory, but also those which were unnecessarily and perhaps recklessly made by him in consequence of proceedings which had to be set aside for error.

But in our judgment the question is no longer open for’discussion here. In Howell v. Van Siclen, 8 Hun, 524, the general term of the supreme court differed with this court upon this very question, and the view of that court was sustained by the court of appeals. From the printed papers in that case which were handed up, it appears that the issues were twice tried by a referee, each trial resulting in a judgment for the plaintiff. Upon an appeal Horn the first judgment, the judgment was reversed and a new trial ordered “ with costs to the defendant to abide the event.” Upon the taxation of costs after the second trial the plaintiff was allowed to tax a trial fee of $30 and the referee’s fees of $350 for the first trial, and a trial fee of $30, and the referee’s fees of $125 for the second trial. The defendant insisted that the reversal of the first judgment deprived the plaintiff of the right to tak the items relating to the first trial, but the supreme court at general term, held:

“When this court granted a new trial with costs to the defendant to abide the event, it was the costs of appeal and not the costs in the action were allowed. The plaintiff having succeeded was entitled to costs, but the defendant, having reversed the judgment, was allowed costs of the proceeding taken by him for that purpose, provided he succeeded in the actions. The plaintiff could not have had them in any court because he did not maintain his judgment. The defendant was not, when the appeal was taken, entitled to costs; he had not succeeded in the action and the presumption must be against him, if any be indulged in when the reversal of the judgment rests upon some error committed upon the trial. He was not the successful party; and still insisting upon his non-liability for the plaintiff’s, claim, he demanded a new trial. He was again unsuccessful and the plaintiff became by the operation of the statute entitled to the costs in the action, except the costs of the appeal. These costs were awarded him, and properly. He was the successful party.”

For these reasons the taxation as had was upheld, and the court of appeals affirmed this decision on June 5, 1877. Ho opinion was delivered by the latter court, but as the affirmance could not well have proceeded upon any other ground then the one upon which the decision was placed belo w, namely that the plaintiff had become entitled to the costs of the first trial by operation of the provisions of the Code regulating the allowance of costs, we consider ourselves bound by it.

In the case at bar the position of the parties is reversed. The defendant is the party finally prevailing, and as such he is entitled to tax all the items rejected by the clerk.

The order appealed from should be reversed with costs, the taxation reopened, and the matter referred back to the clerk with instructions to insert the rejected items.

Curtis, Ch. J., and Sedgwick, J., concurred.

Ordered accordingly.  