
    Stephen Murphy et al., Pl’ffs, v. The Gold & Stock Telegraph Co., Def't.
    
      (City Court of New York, Special Term,
    
    
      Filed November 4, 1889.)
    
    Set off—Costs — Code Civ. Pito., § 779.
    Motion costs awarded to a party “ to abide the event ” cannot ,be set off against the judgment finally recovered by the other party. Section 779 of the Code does not apply to such costs awarded to one who is ultimately unsuccessful.
    Motion by defendant for direction to clerk to offset costs allowed to abide the event.
    
      Dillon & Swayne, for motion; F. P. Forster, opposed.
   McAdam, Ch. J.

A demurrer interposed to the answer was sustained at special term, and on appeal the general term reversed the order, with costs to the defendant “ to abide the event.” This expression was construed by this court in Lotti v. Krakauer, 1 City Ct., 60, and as applied to this case means that if the defendant had been ultimately successful in the action the costs so awarded would have been collectible by it, otherwise not. Section 779 of the Code does not change the result. It applies to two classes of cases, one where motion costs have been awarded to abide the event, the other where motion costs have been awarded absolutely. Under these provisions the party ultimately successful may, when final judgment is entered, tax therein any motion costs awarded to him either absolutely or to abide the event If, on the other hand, the defeated party has any motion costs awarded to him absolutely, he may, instead of collecting them, set them off against the costs of the successful party.

But the code provision in regard to set-off does not apply to motion costs awarded to the party (ultimately unsuccessful) to abide the event, that is to say, the provision in question did not intend that costs belonging to the successful party absolutely, should be reduced by costs “ to abide the event ” awarded to the defeated party, because these costs have never received any enforceable existence for any purpose. The set-off allowed is to be exercised only.“as the case requires,’’and not at the mere option of parties when the case does not require it. It was not intended to change the legal effect of costs intentionally made “ conditional ” by transforming them into costs absolute for the special purpose of set-off If the defendant had eventually succeeded in the action it might have taxed these costs on entry of final judgment, but as it was defeated the power of collecting or using them as an off-set is gone.

I have indicated on the bills presented the result of these views.

It follows that the motion to direct the clerk to setoff said costs must be denied.  