
    Tina Myers, Respondent, v. Andreas Fox, as Executor, etc., of Franziska Knoth, Deceased, Appellant.
    Second Department,
    November 27, 1908.
    Costs — verdict set aside on condition — taxable costs.
    Where a verdict for the plaintiff is set aside and a new trial granted on condition that the defendant pay “ the costs of the trial already had and the disbursements to the date of the order,” the plaintiff is not entitled to tax costs before notice of trial and term fees, for the purpose of the condition is to reimburse him for the disbursements incurred and services performed which were rendered futile by the order setting aside the verdict, that is to say, the services which will have to be performed again.
    Appeal by the defendant, Andreas Fox, as executor, etc., from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the cleric of the county of Kings on the 15th day of July, 1908, denying the defendant’s motion for a retaxation of costs.
    
      Katz & Sommerich, for the appellant.
    
      Louis Weinberger [Jacob Weinberger with him on the brief], for the respondent.
   Miller, J.:

In this case a verdict for the plaintiff was set aside and a new trial was granted on condition that the defendant pay the costs of the trial already had and the disbursements to the date of the order.”

On this appeal we are required to construe the terms imposed as the condition of granting the new trial. The clerk taxed all of the costs of the action to the date of the order, including the costs before notice of trial, fifteen dollars, and four term fees, forty dollars, and the order appealed from denied a motion for retaxation.

The purpose of the condition is to reimburse the successful party at the trial for the disbursements incurred and the services performed which are rendered futile by the order setting aside the verdict. Had it been intended to allow all costs of the action the order would have so stated. The costs after notice of trial, fifteen dollars, and the trial fee, thirty dollars, are allowed for services which will have to he performed again, and are the costs intended to be imposed by the order. The items of fifteen dollars costs before notice of trial and forty dollars term fees should be disallowed.

The order is reversed, with ten dollars costs and disbursements, and the motion for retaxation in accordance herewith is granted, with ten dollars costs.

Woodward, Jenks, Gaynor and Rich, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion for retaxation granted in accordance with opinion, with ten dollars costs.  