
    WILLIAM A. HAVEMEYER, et al., Adm’rs, &c., Appellants, v. JOHN C. HAVEMEYER, et al., Respondents.
    
      Amendment of answer—payment of costs as condition—effect upon recovery of costs theretofore allowed.
    Where the court at general term reversed the judgment in favor of plaintiffs, with costs to defendant to abide the event, and subsequently, and before the new trial, defendant obtained leave to amend his answer upon “ payment of costs of the action to the present time, not including allowance,”—Held, that such order does not deprive defendant of his contingent right to costs under the decision of the appeal, nor is it to be construed as depriving him of the accrued costs of the action to the date of the order, in case he is successful therein; that the order contemplated only a compensation to the plaintiff for the amendment, to be measured by the taxable costs to the time of its entry.
    
      It seems, that the court granting such an order is at liberty and has the power to put its own construction thereon.
    Before Freedman and Arnoux, JJ.
    
      Decided February 6, 1882.
    Appeal by plaintiffs from an order affirming the clerk’s taxation of costs, and denying a motion for re-taxation.
    The facts appear in the opinion.
    
      J. Hampden Dougherty, attorney, and Henry H. Man, of counsel, for appellants.
    
      C. W. Bangs, attorney, and Francis S. Bangs, of counsel, for respondents.
   By the Court.—Freedman, J.

The question presented depends upon the construction to be given to the order of June 4, 1878.

Under the decisions of the court of appeals in Union Trust Co. v. Whiton (78 N. Y. 491, sustaining the supreme court in the construction of its order, in 17 Hun, 593), and First National Bank of Meadville, Pa. v. Fourth National Bank of N. Y. (1 Civ. Proc. R. 317, reversing the supreme court for having undertaken, in 22 Ilun, 563, to construe an order of the court of appeals as it had construed its own order in the case first referred to), it seems clear that this court possesses the power and is at liberty to put its own construction upon the order of June 4, 1878, especially as that order was a discretionary one.

The order, after the défendants had procured as matter of strict right a reversal of the judgment, and while the issues were pending to be re-tried, granted to the defendants leave to amend the answer upon payment “of the costs of the action to the present time, not including allowance.’ ’ This language did not expressly nor by necessary implication deprive the defendants of their contingent right to the costs awarded by the order of the general term in March, 1878, reversing the judgment and granting a new trial, with costs to the defendants to abide the event, or to the costs as now taxed, to which, under the decisions of Howell v. Van Siclen (8 Hun, 524) and Isaacs v. N. Y. Plaster Mills (43 Super. Ct. 397), the defendants are entitled, provided the order of June 4, 1878, did not cut off such right. To hold now that the last-named order had that effect, would be to put a strained and unnecessarily harsh construction upon i t, and one which is contrary to the interpretation already put upon it by this court; for in 44 Super. Ct. 171, the general term, upon defendants’ appeal, defined the meaning of the order to be “ such costs of the trial as would go to the plaintiffs in case there had been a termination favorable to them at the time of the order giving leave to amend.” The condition was not, as the plaintiffs now claim, that the defendants should pay the plaintiffs’ costs and, in addition, submit to the loss of their own and to the loss of their disbursements, though they should finally succeed in the action. Language very different from that which was used, would be required to maintain this proposition. Nor can I perceive that the imposition of the condition was in legal effect a final disposition of the costs of the whole litigation on both sides, up to that time. The order having been made during the pendency of the issues and in the exercise of the discretion of the court, and in respect to a matter of pleading merely, it contemplated not a final and complete disposition of all costs that had accrued up to that time as such, but a compensation to the plaintiffs for the amendment, to be measured by the taxable costs to which they would have been entitled in case then and there they had succeeded. The same ruling was made by the special term of this court in Donovan v. Board of Education (1 Civ. Proc. Rep. 311).

The foregoing considerations distinguish the case at bar from Provost v. Farrell (13 Hun, 303). In that case the issues had been disposed of, and the judgment under which a right to costs had accrued, was set aside and the controversy re-opened as matter of favor, on the ground of newly-discovered evidence, on payment “ of $150.61, costs and disbursements of this action, and $10, costs of this motion.” At any rate, the supreme court had a perfect right to construe its order under the circumstances as it did, while our right to construe the order of June 4, 1878, in accordance with the views above expressed, as called for by the justice of the case, is equally clear. According to the final determinal ion of the case at bar the plaintiffs never had a case, and consequently they were not only not harmed by the amendment, but sufficiently well compensated, for technical reasons, for its allowance, without subjecting the defendants to the additional loss of their costs and disbursements. Under all the circumstances substantial justice requires that the taxation should be sustained.

No discrimination can be made between costs as snch and disbursements.

The order appealed from should be affirmed, with ten dollars costs and disbursements.

Arnoux, J., concurred.  