
    JAMES BIGLER and others, Respondents, v. WILLIAM PINKNEY, Survivor, etc., Appellant.
    
      Costs — when the party finally successful cannot have costs of an int&rmediate unsuccessful appeal.
    
    When a judgment recovered by the plaintiff is affirmed at the General Term but reversed by the Court of Appeals (by which latter court a reargument is ordered at General Term), “ with costs of the appeal to this court (the Court of Appeals) to abide the event of the action,” and thereafter the judgment is, upon a reargument had at the General Term, again affirmed, the plaintiff cannot include in his bill of costs, the costs of the ffist appeal to the General Term.
    
    Appeal from an order-denying a motion for a retaxation of the •osts herein
    
      James K Hill, for the appellant.
    
      E. A. Brewster, for the respondents.
    
      
       See First National Bank of Meadville v. Fourth National Bank of New York (23 Albany Law Journal 275).
    
   Dykman, J.:

This appeal is from an order readjusting costs. The plaintiffs had judgment on the report of a referee, and the defendant moved for an order requiring the referee to make further findings and was denied his request. Then he appealed to the General Term from this order of denial, and from the judgment, and both were affirmed in the General Term. Thereupon the defendant took an appeal to the Court of Appeals where the judgment and the order were both reversed. The motion for additional findings was granted and a direction made that the cause should be heard on such additional findings and the case. The further decision was that the defendant have costs of the appeal from the order, in both courts, and that the costs of the appeal to the Court of Appeals from the judgment should abide the event of the action. The costs of the appeals from the order were adjusted and paid.

There was a reargument of the cause at the General Term after the additional findings were made by the referee, which resulted in affirmance of the judgment, and thereupon the plaintiff taxed costs of the appeal from the judgment to the General Term, costs of the appeal to the Court of Appeals and costs of the reargument at the General Term.

Complaint was made by the defendant of the allowance of the costs at the General Term, and the order appealed from disallowed the charge for printing, for the reason, as we assume, that the defendant paid for the printing.

The objection raised to the allowance of costs in the Court of Appeals cannot be sustained. Under the decision of that court they went to the party eventually succeeding in the action, and so far the plaintiff is successful.

The allowance to the plaintiff of the costs in the General Term presents a question more serious. The plaintiff there had a judgment of affirmance, and the order entered on the decision of the Court of Appeals provided that such judgment be and the same hereby is reversed, with costs to the Court of Appeals to abide the event of the action.” This is an action of law and costs follow success, but here the plaintiff sustained defeat. The decision of the Court of Appeals does not make the costs of the action abide the event but only the costs of that court, and there has been no decision affecting the costs in the General Term ; as therefore the judg-' ment of the plaintiff was reversed he cannot be allowed costs of the General Term. Ninety-five dollars allowed to the plaintiff for such costs must therefore be disallowed and stricken out, and the order appealed from must be modified in that respect and as so modified affirmed, without costs to either party.

Barnard, P.’J., concurred; Gilbert, J., not sitting.

Order modified in accordance with opinion. Order to be settled by Uykman, J.  