
    Bertha Friedheim, Respondent, v. The Metropolitan Street Railway Co., Appellant.
    (City Court of New York, General Term,
    May, 1901.)
    Gosts — Taxation where there was a disagreement and a second trial.
    Where the jury disagree on the first trial of a case and the plaintiff succeeds on the second, she is entitled to tax two items for costs after notice of trial.
    Appeal from an order retaxing costs.
    Henry A. Robinson (John T. Little and Henry M. Lummis, of counsel), for appellant.
    Moses Feltenstein, for respondent.
   Schuchman, J.

This action was brought to recover damages for personal injuries, and at the first trial the jury disagreed.

The ease was subsequently retried, and resulted in a verdict in favor of the plaintiff. The bill of costs was taxed by the clerk, and included two items, amounting to thirty dollars — fifteen dollars each — Eor costs after notice of trial.” The clerk allowed only one item of fifteen dollars. To this the plaintiff excepted, and moved at Special Term for a retaxation, where an order was made allowing the two items of fifteen dollars, each to be taxed, and that order is appealed from.

The appellant relies upon the case of Seifter v. Brooklyn Heights R. R. Co., 53 App. Div. 443, in which the Appellate Division of the Second Department held that, under such circumstances, only one item should be taxed, while the respondent relies upon the case of Gilroy v. Badger, 28 Misc. Rep. 143, where the Appellate Term of the Supreme Court, in the First Department, held that the two items should be allowed.

Under these conflicting decisions, it seems to me that the only proper thing to do would be to affirm the order appealed from and let the Appellate Term determine the conflict.

Order appealed from affirmed, with ten dollars costs and disbursements.

Fitzsimons, Ch. J., and Delehanty, J., concur.

Order affirmed, with ten dollars costs.  