
    John Ellert v. Charles Kelly.
    "Where a judgment for the plaintiff in the Marine Court is reversed in this court without an award of judgment for the defendant upon the merits, such reversal is not conclusive of the rights of the parties.
    And in such case, the costs incurred by the defendant in the court below, cannot be allowed to him, and included in the judgment of reversal in the appellate court.
    Whether such costs should be allowed to the appellant, where the appellate court not only reverse the judgment below, but also order judgment final for the appellant upon the merits 8 Quere.
    
    Whether the costs to be awarded to the appellant, on appeals from the Marine and District Courts, are governed exclusively by §§ 354 and 3Í1 of the Code, and whether § 230 also applies thereto 8 Quere.
    
    The plaintiff,' Ellert, having recovered a judgment in the Marine Court, upon the verdict of a jury, in an action for slander, the defendant appealed to this court, where “the judgment was reversed with costs.”
    The appellant applied to this court, at a special term, for an order directing the clerk to re-adjust the costs, as taxed by him, and allow the defendant the costs wMch he would have recovered m the Marine Court had the judgment in that court been given in his favor.
    The motion was demed; the judge at special term holding, that upon appeals from the Marine and District Courts, the costs to be awarded to the appellant are governed by §§ 354 and 371 of the Code, and that § 230 does not apply thereto.
    From the order denying the application, the defendant appealed.
    
      Judah H. Hartt, for the defendant.
    
      John L. Hanes, for the plaintiff.
   By the Court.

Woodruff, J.

In this case the plaintiff recovered a judgment in the court below against the defendant. This court, on appeal, reversed that judgment for error appearing by the return. It by no means foEows that the defendant was entitled to judgment in the court below in his own favor, and to his costs in that court as a part of that judgment.

Had this court deemed the case one in which we could pronounce judgment on the merits, the judgment here would have been not a mere judgment of reversal, (which leaves the merits undecided and the plaintiff at Eberty to prosecute further, if so advised,) but it would have been a judgment reversing the judgment below, and awarding a final judgment for the defendant. And such was the case in Esters v. Baldwin, 9 How. Pr. Rep. 80.

Since the decision of the motion made in this case to compel the clerk to include the costs of the defendant incurred in the court below in the costs on reversal here, one of the judges at special term has held (in conformity with the decision above referred to) that section 230 of the Code does apply to appeals from the Marine and Justices’ Courts. Without considering that question upon this appeal, (although the order appealed from was, in the note of the reason given therefor, placed upon a contrary view of the subject,) we are decidedly of opinion, that whether that section does or not apply to such appeals, the order appealed from was correct, and should be affirmed.

There has been no final determination between the parties. It does not appear that the appeEant has lost the costs (which he incurred in the court below) by reason of the erroneous judgment. Non constat that he would have recovered those costs if the error had not been committed. The judgment might have been against him if the errors had not occurred. The fact that errors were committed was a sufficient reason for relieving him from the judgment itself.

But the reversal did not adjudge directly, nor by implication, that the defendant was not liable at all. We have power to order final judgment for the party prevailing on appeal, or simply to reverse; and when the latter judgment is ordered, we do not and cannot determine whether the defendant has lost his costs by reason of the error.

Without, therefore, passing upon the other question, the order must be affirmed; but, as the question was not free from doubt, and the cases referred to seemed to justify the appeal, no costs of the motion or of this appeal should be awarded.

Order affirmed.  