
    GUSTAVUS ISAACS, Plaintiff and Respondent, v. THE NEW YORK PLASTER WORKS, Defendant and Appellant.
    COSTS, JUDGMENT FOR.
    Decision of court of appeals, reversing the judgment, and ordering a new trial, with costs to abide the event, effect of upon the costs.
    
    The party succeeding upon the first trial, and. again succeeding upon the new trial (or Ms opponent failing to recover in the second trial, enough to carry costs), can include in his Mil of costs as taxable items, the amount adjudged to Mm for costs by the judgment reversed, and the costs and disbursements awarded by the general term, as well as the costs, &c., of the appeal to the court of appeals, and of the second trial.
    In this case the defendant is entitled to the costs of the first trial, &c., by virtue of the provisions of the code regulating costs.
    
      Decided February 4, 1878.
    Semble, when an appellate court grants a new trial with costs to abide the event, it is the costs of the appeal, and not the costs of the action, that are allowed (Howell v. Van Siclen, 8 Sun, 524; affi’d by court of appeals, June 5, 1877).
    Before Curtis, Oh. J., and Sedo-wick and Freedman, JJ.
    Appeal from order affirming taxation of costs.
    The action was 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 judgments, 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.
    
      Dana & Clarkson, attorneys, and F. E. Dana, of counsel, for appellants, urged :
    —I. The verdict being for nominal damages, entitled defendants to costs, and no application to the court for leave to tax costs or enter judgment by them was necessary (Fuller v. Coude, 47 N. Y. 304; Powers v. Gross, 2 N. Y. Weekly 
      
      Dig. 561; 66 N. Y. 646, court of appeals, affirming S. C., 6 Hun, 234; Lultgor v. Walters, 64 Barb. 417).
    II. As to error of clerk in disallowing items sought to be taxed (Code, §§ 304, 305, 307; Sturges v. Spofford, 58 N. Y. 103; Same v. Same, 3 Hun, 52-57; Howell v. Van Siclen, 8 Id. 524; affirmed in the court of appeals, June 5, 1877; 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. 139; Patten v. Stitt, 2 J. & S. 346; Van Wyck v. Baker, 4 N. Y. W. D. 597; Hamilton v. Butler, 4 Robt. 654; Spring v. Day, 44 How. 390).
    
      S. A. Seixas, attorney, and of counsel, for respondents.
   By the Court. —Freedman, J.

—The taxation is sought to be upheld under the decision of this court in Cochran v. Gottwald, 42 N. Y. Superior Ct. R. (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 into 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 00

Costs after notice of trial, . . . . 15 00

Five term fees, from June, 1873, to Dec., 1874, 50 00

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. Gottwald (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 attaches 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 from 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 $30.00, and the referee’s fee of $350.00 for the first trial, and a trial fee oí $30.00, and the referee’s fee of $125.00 for the second trial. The defendant insisted that the reversal of the first judgment- deprived the plaintiff of the right to tax 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 the appeal, and not the costs in the action, which 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 action. The plaintiff could not have them in any event, 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, where 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 the 5 th of June, 1877. Ho opinion was delivered by the latter court-; but as the affirmance could not well have proceeded upon any other ground than the one upon which the decision was placed below, 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 re-opened, and the matter referred back to the clerk, with instructions to insert the rejected item.

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