
    Emil F. Begiebing, Respondent, v. Max Jagerhuber, Appellant, Impleaded with John Patterson and Others, Defendants.
    First Department,
    April 16, 1915.
    Costs — appeal from two orders — taxation — cost of printing Both records.
    Where the Appellate Division affirmed an order staying a plaintiff’s proceeding until he pays the cost of a former action, but reversed another order staying his proceedings permanently if he failed to pay the costs within twenty days, and the appeals from these two orders were presented on separate records, the plaintiff, although successful on one appeal, cannot tax the cost of printing both records. A motion for retaxation should be granted on which the plaintiff should only be allowed disbursements for printing the record on the appeal in which he was successful, and the proportionate cost of printing the points applicable thereto.
    Appeal by the defendant, Max Jagerhuber, from an order of the Supreme Court, made at the Bronx Special Term and entered in the office of the clerk of the county of Bronx on the 24th day of March, 1915, denying his motion for a retaxation of costs.
    
      Elkan Turk, for the appellant.
    
      L. J. Morrison, for the respondent.
   Laughlin, J.:

On defendant’s motion an order was duly made staying the plaintiff’s proceedings herein until he paid the costs of a former action for the same relief, and providing that if he failed to pay the costs within twenty days his proceedings in the action should be stayed permanently. The costs were not paid within that time, and on motion of appellant an order was duly entered permanently staying plaintiff’s proceedings in the action. The plaintiff appealed from each of these orders and the appeals were presented on separate records.

We affirmed the first order, with ten dollars costs and disbursements, and we reversed the order permanently staying plaintiff’s proceedings in the action, with ten dollars costs and disbursements, and denied the motion, with ten dollars costs. (167 App. Div. 899, 900.) The plaintiff, under the order on the appeal on which he was successful, taxed all his costs of printing on both appeals, which includes thirty-seven dollars and ninety-five cents, the cost of printing both records, and seven dollars and eighty-five cents, the cost of printing the points which were combined for both appeals, and four dollars and fifty cents, the cost of certifying both records; and he has succeeded in sustaining such taxation on the theory that all of his disbursements for printing were necessary to review the order permanently staying his proceedings. That contention is not sustained by the facts.

The record on the appeal on which the plaintiff was successful consisted of eight printed pages, and that order was based on the first order and on an affidavit showing non-payment of the costs within twenty days. The record on that appeal contained all of the papers upon which the motion was made. The other record on appeal contained forty printed pages. The plaintiff’s points on the appeals consisted of eight printed pages, less than one of which was devoted to the order permanently staying the proceeding. The learned counsel for the respondent is quite right in his contention that the record does not afford a basis upon which this court can separate the cost of printing the records and points, essential to each appeal, owing to the fact that there is no affidavit showing separately the cost of printing the two records or showing the cost of printing the points per page. It concededly appears, however, that the total disbursements taxed for printing and for certifying the records were not incurred on the appeal on which the plaintiff was successful, and, therefore, the taxation as made cannot be permitted to stand.

It follows, therefore, that the order should be reversed, with ten dollars costs and disbursements, and motion for retaxation granted, with ten dollars costs, and the clerk directed to retax the disbursements by allowing only the plaintiff’s disbursements for printing the record on the appeal in which he succeeded and the proportionate cost of printing the points applicable thereto, and of certifying that record only.

Ingraham, P. J., McLaughlin, Clarke and Scott, JJ., concurred.

Order reversed, with ten dollars costs and disbursements motion for retaxation granted, with ten dollars costs, and the clerk directed to retax disbursements as stated in opinion. Order to be settled on notice.  