
    William Wallace Young, Appellant, v. William Woop and Katherine Woop, Respondents.
    First Department,
    January 22, 1914.
    Costs — stipulation discontinuing action on condition that defendant pay judgment — reservation of question as to amount of costs — when plaintiff by enforcing judgment does not waive right to costs.
    Where, after the entry of a judgment on a verdict with costs, the parties stipulate that further proceedings in the action shall be discontinued, but that the judgment shall continue in force and that the defendant will pay the same in two installments, with a further proviso that, in the event he fails to pay, the plaintiff may issue execution and that any sums allowed on a motion to retax the costs shall be credited on the judgment, the plaintiff, by issuing execution to collect the second installment due under the stipulation, did not waive his right to costs.
    Appeal by the plaintiff, William Wallace Young, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 1st day of July, 1913 granting defendants’ motion to vacate the retaxation of costs herein and disallowing all costs and disbursements to plaintiff; also a notice of motion by the respondents to dismiss the appeal.
    
      James A. Hughes, for the appellant.
    
      John T. Walker, for the respondents.
   Ingraham, P. J.:

The question presented to the court below was whether the plaintiff was entitled to costs, the recovery having- been for less than $1,000. (See Code Civ. Proc. § 3228, subd. 5, added by Laws of 1901, chap. 557, as amd. by Laws of 1910, chap. 574.) The summons, with notice of judgment, was served upon the defendant Katherine Woop in the village of Ossining in Westchester county and upon the defendant William Woop in the borough of Manhattan, city of New York. The plaintiff having obtained a verdict for $161.53, judgment was duly entered for that amount and for $11.60 costs. After the entry of judgment and on June 13, 1913, the parties entered into a stipulation that all proceedings in the action be discontinued and that the judgment heretofore entered be continued in full force, provided, however, that if the defendants should within thirty days after the date of the stipulation pay to the plaintiff one-half of the judgment heretofore entered and interest thereon, and one-half within sixty days, the said judgment should he satisfied; and that in the event of the failure of the defendants to pay either of the said installments on the day it is due the plaintiff shall be at liberty to issue execution, and further providing that if the defendants should move within ten days for a retaxation of the costs and disbursements and if on the.final determination of the said motion the sum as heretofore taxed by the clerk be disallowed, or any part thereof, the amount of such disallowance shall be credited on the judgment. The defendants then made a motion returnable on the 1st of July, 1913, to set aside the retaxation of the costs and disbursements made by the clerk and to disallow all costs and disbursements in the action, and that motion was granted and costs were disallowed. At the date of this stipulation the judgment amounted to $557.13, consisting of the verdict for $482.53 and the costs as taxed of $74.60. One-half of the verdict of $482.53 was paid on the date of the stipulation. The defendants, however, failed to pay the other half of the judgment, and thereafter execution was issued and the balance of the judgment collected by the sheriff. After this execution was issued and the judgment collected, the plaintiff appealed from the order of the. Special Term disallowing the costs.

On the argument of the appeal counsel for the defendants conceded that under the case of Moraff v. Kohn (157 App. Div. 648) the decision of the Special Term was erroneous and the plaintiff was entitled to costs, but insisted on their motion to dismiss the appeal on the ground that the plaintiff, by enforcing the judgment for the amount of the verdict, without costs, had accepted the benefit of the judgment or order appealed from and was, therefore, precluded from appealing. The only question tobe determined, therefore, is whether or not the appeal should be dismissed, as it is not disputed but that plaintiff was, under Moraff v. Kohn (supra), entitled to costs.

I think the motion should be denied. By the stipulation the defendants agreed to pay the amount of the verdict with interest, and agreed further that the question of whether the plaintiff was entitled to costs should be determined by a motion at Special Term, if made ten days after the stipulation was signed; and this question as to the right of the plaintiff to costs was to be settled by the final determination of the court. The enforcement of the judgment for the amount stipulated to be due, and which the defendants agreed they would pay, was not, by the stipulation, dependent upon the determination of the question as to whether plaintiff was entitled to costs. It is clear that if the defendants had paid the whole amount of the judgment according to the stipulation, such payment would not have precluded either party from having a final determination of the question as to whether or not the plaintiff was entitled, in addition to the amount of the verdict, to the costs of the action as taxed. The defendants also expressly agreed, if they did not pay the second installment of the verdict, that the plaintiff should be allowed to issue execution for the amount that was concededly due, and the fact that he issued such execution was not a waiver of his right to have a final determination of the question as to whether the defendants should also be charged with the costs of the action. The plaintiff was entitled to his verdict and costs and has been paid the amount of the verdict. He is also entitled to costs, which have not been paid. If the court below had denied the motion to disallow all costs and disbursements, as it should have done, there would then have been no question but that the plaintiff would have been entitled, in addition to the verdict, to the costs of the action, and there was no waiver of his right to have the question as to the liability of the defendants for costs determined, and, if entitled to costs, to have the judgment for costs enforced.

The motion to dismiss the appeal is, therefore, denied, with ten dollars costs; the order appealed from reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

McLaughlin, Laughlin, Clarke and Scott, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs. Motion to dismiss appeal denied, with ten dollars costs.  