
    Starr Cash Car Co. v. Henry Reinhardt et al.
    
    
      (New York Common Pleas, General Term,
    
    
      Filed January 2, 1894.)
    
    1. Costs—To abide event.
    Where the common pleas reverses a judgment of the city court and orders a new trial, with costs to the appellant to abide the event, the costs of the appeals in the above courts and of the trial which resulted in the judgment reversed are included.
    2. Same.
    When such costs are allowed to the appellant to abide the event, they cannot be taxed by his adversary if the new trial results in the latter’s favor.
    3. Same—Amendment.
    The payment of costs as a condition of amendment does not preclude the successsful party from taxing costs of the trial.
    4. Same—Construction op order.
    But the court which awards the costs, in such a case, is at liberty to construe its own order and to say what is embraced in the award.
    Appeal by defendants from so much of the order of the general term of the city court as affirms the order of the special term allowing plaintiff to tax the trial fee of thirty dollars for a previous trial and the jury fees upon two previous trials of the action.' Appeal by plaintiff from so much of the same order as modifies the special term order by disallowing a trial fee of forty dollars for one of the previous trials of the action.
    Upon the first trial of this action the plaintiff moved for judgment on defendants’ answer. The defendants asked for leave to amend, and a juror was withdrawn at their request upon condiof the payment of thirty-five dollars costs, which condition they complied with. On the second trial of the action plaintiff moved for judgment on the amended answer, which motion was granted. Defendants appealed to the general term of the city court, which affirmed the judgment. They appealed to this court where it was held that the answer set up a valid counterclaim which should have been tried upon the merits, and the judgment was reversed and a new trial ordered, with costs to the appellants to abide the event.
    On the new trial the plaintiff recovered a verdict and was allowed to tax in its bill of costs a trial fee and a jury fee for each of the previous trials. The defendants appealed to the general term of the city court, which disallowed the trial fee for the first trial and affirmed as to the residue. Both parties appeal from that order.
    Janeway, Thatcher & Richards, for pl’ff; Joseph G. Rosenbaum, for deft.
   Daly, Ch. J.

When we reverse a judgment of the city court and order a new trial with costs to the appellant to abide the event, we intend that the costs of the appeal to this court and of the appeal to the general term of the city court and of the trial which resulted in the judgment reversed shall be included in such costs. In construing an order of the court of appeals ordering a new trial in our own court with costs to abide the event, we hold that the costs of the former trial as well as of the appeal are intended. Mott v. Consumers' Ice Co., 8 Daly, 244, and our rule is in conformity with that of the court of appeals in reversing a judgment and ordering a new trial with costs to abide the event, as the appellate court intends thereby all the costs of the action up to and including the decision of the court. Franey v. Smith, 126 N. Y., 658; 37 St. Rep., 480, and to the same effect is the decision of the court with respect to a similar award of costs to appellant. Cochran v. Gottwald, 42 Supr. Ct., 214.

When such costs are allowed to the appellant to abide the event, they cannot be taxed by his adversary if the new trial results in favor of the latter. We have the power under § 3238 of the Code of Civil Procedure, regulating costs upon apppeal from final judgment, to award costs absolutely or to abide the event, and we have the power to award them absolutely to the appellant ; and when we grant them to him conditionally upon his ultimate recovery, his adversary cannot, under any construction of such an order, become entitled to them, but can recover only the costs of the new trial, and such costs of the action as are exclusive of the costs and disbursements of the trial which has been set aside. The costs of the first trial, which terminated by the withdrawal of a juror, were unaffected by our decision upon the appeal from the judgment upon the second trial, and the plaintiff, having ultimately succeeded in the action, would be entitled to such costs. The defendants contend, however, that the thirty-five dollars paid by them as a condition of the favor extended to them in permitting the withdrawal of a juror to enable them to amend, embrace the trial fee upon that trial, and that the latter item cannot be taxed and collected from them a second time. This contention cannot be sustained upon, authority; the payment of costs as a condition of amendment contemplates only a compensation to the plaintiff to be measured by the taxable costs and the successful party is still entitled to tax costs of the trial. Cohu v. Husson, 13 Daly, 334; 6 St. Rep., 292. But the court which awards the costs in such a case is at liberty to construe its own order and to say what is embraced in the award; and the city court, at General term, having disallowed the taxation of a trial fee for the first trial placed a construction upon its own order, with which we cannot interfere. Cohu v. Husson, supra.

must, therefore, affirm so much of the order which disallows the trial fee upon the first trial and from which the plaintiff appeals, and we must affirm so much of the order as allows the plaintiff to tax the jury fee upon such trial, from which the defendants appeal. The allowance to the plaintiff of the trial fee and jury fee upon the second trial was improper, because they were a part of the costs which we awarded to the appellant in granting him a new trial, and the order of the general term which affirms such allowance and from which defendant appeal, must be reversed.

' As neither party has wholly prevailed upon this appeal, no costs are allowed.  