
    Sidonia Feltenstein, Appellant, v. Moritz L. Ernst and Carl Ernst, Respondents.
    (Supreme Court, Appellate Term,
    May, 1907.)
    Costs — Costs on appeal — Right to costs and authority to award — Costs to abide event — To appellant succeeding on second trial after reversal of former judgment.
    Where the defendants appeal from a judgment of the City Court of the City of New York and, the Appellate Term reverses the judgment and orders a new trial, with costs to the appellant to abide the event, and the defendants, thereupon, by permission of the Appellate Term, appeal to the Appellate Division, stipulating that, if the Appellate Division affirms the judgment, judgment absolute shall be rendered for the defendants, and the judgment of reversal is affirmed and judgment absolute is thereupon rendered in favor of the defendants, the defendants are entitled to tax the costs before and after notice of trial and a trial and term fee.
    Appeal by the plaintiff from an order of the City Court of the city of New York, denying a motion for a retaxation of costs.
    Feltenstein & Rosenstein, for appellant.
    Arnstein & Levy (Alexander Pfeiffer, of counsel), for respondents.
   Brady, J.

This action was brought in the City Court and the plaintiff recovered a judgment. Upon appeal this court reversed the judgment, ordered a new trial,. “ with Costs to the appellant to abide the event.” By permission of this court the plaintiff was allowed to appeal to the Appellate Division upon filing a stipulation to the effect that, if the Appellate Division affirmed the judgment of the Appellate Term, judgment absolute should be rendered and entered in favor of the defendants. The Appellate Division affirmed the determination of this court and rendered judgment absolute in favor of the defendants; and the judgment of the Appellate Division was, by order of the City Court, made the judgment of that court. The defendants thereupon taxed their costs in the City Court, as follows: The costs on appeal to the Appellate Term, costs on appeal to the Appellate Division and the costs of one trial and disbursements. The plaintiff made a motion to disallow the costs before and after notice of trial and a trial and term fee, and from the order denying such motion this appeal is taken. We think the costs were properly taxed. There is no question that, when a judgment is reversed with costs to abide the event, it means that such costs are those of the appeal only; but, where the appellant has been successful in the lower court upon .the new trial, or upon a further appeal, where judgment absolute has been rendered in his favor and the judgment of the appellate court has been made the judgment of the lower court, he becomes entitled to the costs of one trial. Suppose the Appellate Term had reversed the judgment absolutely with costs; could there be any question about the right of the appellant to return to the lower court and tax the costs of the trial in that court ? Certainly not. And that is the effect of the decision of the Appellate Division in the case at bar. Tu Schoonmaker v. Bonnie, 51 Hun, 34, the action was to compel specific performance. The General Term of the Supreme Court- reversed the judgment as to two defendants with costs. The question of the right of these defendants to tax the costs of the trial having arisen, the court said: “ Had the trial court awarded a judgment dismissing the complaint as to these women, without costs, the affirmance by the General Term of the judgment would continue the judgment as it stood at the time the appeal was taken, and the words, with costs, in that event would only apply to proceedings thereafter taken; hut in the case under consideration the General Term reversed the judgment awarded by the trial court and, in effect, ordered a final judgment dismissing the complaint and then awarded costs which, under such circumstances, includes all the costs taxable as such in the Supreme Court, being those of the trial court and the General Term.” Hone of the cases cited by appellant are opposed to this position.

Gildersleeve and Seabury, JJ., concur.

Order affirmed, with costs and disbursements.  