
    SUPREME COURT.
    Eber L. Pilgrim agt. Patrick Donnelly.
    
      Costs—To be allowed where an appeal is taken from an order denying a motion for a new tried, made at special term, upon a case as well as from, the judgment— Code of Civil Procedure, sections 3239, 3251.
    Upon a motion for a new trial, made at special term upon a case, the appellant is entitled to costs, twenty dollars before argument, and forty dollars for argument where an appeal is taken from an order denying said motion, as well as from the judgment entered in the action under subdivision 3 of section 3251 of the Code of Civil Procedure. Subdivision 2 of section 3239 does not prevent the allowance of such costs.
    
      Brooklyn Special Term,
    October, 1884.
    Motion for new taxation of costs. On the first trial the defendant had a verdict upon which judgment was entered for costs. The plaintiff appealed to the general term from such judgment, he also made a case containing exceptions upon which a motion was made at special term for a new trial, which was denied, and he appealed from the order denying such motion to said general term. On the appeal the general term reversed the order and judgment and granted a new trial, costs to abide the event. In the special term order denying a new trial nothing was said about costs!
    On the second .trial plaintiff recovered, and included in his bill of costs twenty dollars before argument, and forty dollars for argument on the appeal at general term, and also like sums before and for argument on the motion for a new trial at special term. The latter items (twenty dollars and forty dollars), the clerk, on motion of defendant, struck out, and the plaintiff made this motion for a new taxation.
    
      Groo c& Wiggins, for the motion,
    claimed that under subdivision 3 of section 3251 of the Code of Civil Procedure, viz: “ Upon a motion for a new trial upon a case the same sums as upon an appeal as prescribed in subdivision 4 of this section,” the plaintiff was entitled to the same costs as on the appeal from the judgment (being sixty dollars at special term and sixty dollars at general term), and cited Scudder agt. Gori (28 How., 155); Selover agt. Wisner (37 How., 176); Stitt agt. Rowley (37 How., 179).
    
      George W. Greene, for defendant,
    contended that to allow the sums claimed was in effect to give double costs, being sixty dollars on appeal from the order, and sixty dollars on appeal from the judgment. Also that subdivision 2 of section 3239 of the Code of Civil Procedure expressly prohibited the allowance of costs on appeal from the order refusing a new trial, where an appeal is also taken from the judgment.
   Barnard, J.—

Motion for a new trial upon a case is to be heard as upon appeal. When the motion was denied the defendant was entitled to twenty dollars and forty dollars.

The general term reversed the order, with costs to abide event. When the plaintiff recovered he was entitled to the said sums, twenty dollars and forty dollars.

Ordered accordingly.  