
    Hauselt v. Bonner et al.
    
    
      (Supreme Court, General Term, First Department.
    
    July 9, 1889.)
    Costs—Aeter Appeal.
    A judgment of the special term provided that a complaint of plaintiff be dismissed on the merits, and that the five defendants recover $354.95 costs of plaintiff. On appeal the judgment was affirmed as to one defendant, with costs of suit, reversed as to three defendants, and as to one neither reversed nor affirmed. Held, that the two defendants could recover their costs as awarded by the court below.
    Appeal from special term.
    Appeal from order denying motion to set aside execution. The following is the opinion below:
    “Ingraham, J. The judgment asked for in this action was that plaintiff have judgment against the defendants for the payment of plaintiff’s demand out of the real estate acquired by them, as described in the complaint, according to the several proportions received by them, and that they be severally and personally charged with the amount of any such real estate aliened by them. The judgment of the special term provided that the complaint of the plaintiff be dismissed upon the merits, and that the defendants Stevenson, Elizabeth Patterson, William Patterson, Catherine Bonner, and David Bonner recover of the plaintiff the sum of $384.95, the amount of the said costs, and that they have execution therefor. On appeal to the general term the judgment dismissing the complaint was affirmed as to David Bonner, with costs of appeal, thus adjudging that plaintiff had no cause of action against him, and reversed as to the defendants Stevenson, Elizabeth Patterson, and Catherine Bonner, and a new trial ordered. The judgment in favor of William Patterson does not appear to have been either affirmed or reversed on the appeal. The case therefore stands in this position: that by the judgment five defendants are held to be entitled to recover $384.95 costs, and the judgment as to three of such defendants is reversed. They are not entitled to recover from the plaintiff. But as to the other defendants the judgment as directed by the special term stands. As to these two defendants the dismissal of the complaint is absolute, and would be a bar to another action brought by plaintiff for the same cause of action, and I can see no reason why the judgment that such defendants recover their costs does not stand in the position unaffected by the appeal, and entitle such defendants to recover their costs as taxed. The general term had the question of the costs before them, and, if it had not been their intention to have allowed these defendants to recover the costs awarded' below, the order of the general term would have directed the judgment for costs in favor of these two defendants to be reversed. This motion is not made to set aside or modify the judgment, and it is idle to speculate as to what costs the special term would have awarded these defendants if the dismissal-had been as to these defendants alone. Until that judgment is modified by striking out the provision awarding judgment in favor of the defendants David-Bonner and William Patterson for their costs, I can see no reason why they are not entitled to collect the judgment by the appropriate process. I think, therefore, the execution was regular, and the motion to set it aside should be denied. If plaintiff desires to review this determination by an appeal to the general term I will stay ail proceedings on the execution until such an appeal can be determined. Order to be settled on notice. ”
    Argued before Van Brunt, P. J., and Brady and Barrett, JJ.
    
      Lewis Sanders, for appellant. Preston Steoenson, for respondent Bonner.
   Per Curiam.

The order should be affirmed, with $10 costs and disbursements, on the opinion of Mr. Justice Ingraham, in the court below.  