
    COUET OF APPEALS.
    Thomas Murtha, appellant, agt. Michael Curley et al., respondents.
    
      Costs—Where a money judgment was recovered against defendant, who appealed to the general term, where the judgment was reversed and a new trial gi'cmted, “with costs to the appellant to abide the event of such new trial,” and from such order the plaintiff appealed to the court of appeals, which reversed the ordei• of the general term and affirmed the judgment of the. special term, “ with eosts ”—What eosts to be allowed and to whom— Code of Civil Procediere, sections 8228, 3229, 3227, 3238.
    Where the general term reversed a money judgment recovered against defendant at special term and granted a new trial, “with costs to the appellant to abide the event of such new trial,” and the court of appeals then reversed the order of the general term, and affirmed the judgment of the special term, “with costs,” the plaintiff was entitled to tax the costs of the appeal to the general term {Reversing 8. C., 64 How., 465, and affirming 8. C., 64 How., 222).
    
      Appeal from an order of the general term of the superior court of the city of New York, reversing an order of the special term.
    
      Decided May, 1883.
    
      Adolphus D. Pape, for appellant.
    
      Starr & Iloolter, for respondent.
   Earl, J.

In this action a money judgment was recovered against the defendant. From that “judgment he appeals to the general term of the New York superior court, where the judgment was reversed and a new trial granted, with costs to the appellant to abide the event of such new' trial.” From the order of the general term the plaintiff appealed to the court of appeals, which reversed the order of the general term and affirmed the judgment of the special term, with costs.”' Upon the taxation of costs plaintiff sought to tax the costs of the appeal to the general term. Upon objection on behalf of the defendant, the clerk disallowed such costs and plaintiff then appealed to the special term, which reversed the ruling of the clerk and directed him to tax the costs of the appeal to the general term. The defendant then appealed from the order of the special term to the general term, which reversed the order of the special term and affirmed the ruling of the clerk, and this appeal is from that order of the general term.

Section 3228 of the Code provides for the case in which a plaintiff is entitled to costs of course, and subdivisions, one, two and three of that section provide for costs in what are v nominally called actions at law. Subdivision four gives costs to the plaintiff in “ an action other than one of those specified in the foregoing subdivisions of this section in which the complaint demanded must be for money only.” Under this subdivision it does not matter whether the action be legal or equitable, the sole condition being that the judgment demanded must be for money only. Section 3229 provides that the defendants shall have costs of course in the same action specified in the preceding section, unless the plaintiff is entitled to costs as therein prescribed. Section 3230 provides that except as prescribed in the preceding two sections, the court may in its discretion award costs to any party upon the rendering of a final judgment. Section 3237 provides that the preceding sections “ do not affect the recovery of costs upon an appeal,” and then section 3238 provides that “ upon an appeal from the final judgment in an action, the recovery of costs is regulated as follows: 1st. In an action specified in section 3228 of this act the respondent is entitled to costs upon the affirmance, and the appellant upon the reversal of the judgment appealed from, except that where a new trial is directed, costs may be awarded to either party absolutely, or to abide the- event in the discretion of the court. 2d. In every other action, and also where the final judgment appealed from is affirmed in part, and reversed in part, costs may be awarded in like manner in the discretion of the court.” It does not appear in the record before us what judgment was demanded in the complaint. From the fact a money judgment was rendered we may infer that a money judgment only was demanded in the complaint; and such from records in our possession we know to be the fact (90 N. Y., 372).

Therefore this is a case where the plaintiff was - entitled to costs of course, under section 3228. Upon the entry of the judgment in his favor, and as his judgment was finally affirmed in this court, he was, of course, entitled to his costs of the appeals to the general term and to this court under section 3238. But if we assume that this is an equitable action, that the costs are not controlled by subdivision 4 of section 3228, and that they rest in the discretion of the court the result is yet the' same. Then, while the cause was pending in the supreme court, the costs were in the discretion of that court; and when it came here the costs were in the discretion of this court. The order of the general term would have governed as to the costs if a new trial had been had. But the plaintiff was not satisfied with that order; he did not take the new trial, but appealed to this court. That order was reversed and thus its entire effect was wiped out, and this court exercised its discretion upon the costs by affirming the judgment of the special term, “ with costs.” That means all the taxable costs subsequent to the judgment affirmed consequent upon the appeals both to the general term and to this court. The whole subject of costs both in the superior court, subsequent to the payment there and in this court, was then subject to the control of this court and it exercised its discretion by granting them to the plaintiff.

It follows, from these views, that the order of the general term should be reversed and that of the special term affirmed, with costs, and when we say “ with costs ” we mean the costs of the appeal to the general term and to this court.

All concur.  