
    Fishel Koeppel, Respondent, v. Mendel Koeppel and Abe Koeppel, Appellants.
    (Supreme Court, Appellate Term,
    June, 1906.)
    
    Costs — Costs on appeal—Amount and items. ■
    Where an order granting a new trial to the defendant for newly discovered evidence is reversed on appeal, with costs, the plaintiff is not entitled to tax costs for making and serving case on appeal, nor costs for the case being over fifty folios, nor three term fees for the motion for a new trial, where the ease was made by the defendants and the motion was on the calendar for one term only,
    Appeal by defendants from an order of the City Court of the city of New York denying their motion for a retaxation of" costs.
    Steuer & Hoffman (Charles L. Hoffman and Henry A. Friedman, of counsel), for appellants.
    Abraham B. Schleimer (Max Schleimer, of counsel), for respondent.
   Per Guriam.

On February 20, 1905, the plaintiff obtained' a judgment against defendants. Subsequently a motion was made upon a case and exceptions for a new trial on the ground of newly-discovered evidence. The motion for a new trial was granted. - The plaintiff appealed from the order granting a new trial. The Appellate Term of this court reversed the order, “ with costs and disbursements.” The costs were taxed at ten dollars and disbursements. Plaintiff appealed from an order denying his motion for a retaxation of costs, on the ground that his costs were wrongfully limited to ten dollars. The Appellate Term reversed the order denying plaintiff’s said motion for a retaxation, and remitted the bill of costs to the City Court for retaxation, holding that plaintiff was entitled to full costs.. See Koeppel v. Koeppel, 49 Misc. Rep. 218. The costs were retaxed and defendants objected to the following items, viz.: Making and serving case, twenty dollars. Making and serving case of more than fifty folios, ten dollars. Three term fees in the Appellate Term, thirty dollars, and made a motion to retax the costs by disallowing these items. This motion was denied, and from the order denying this motion to retax the costs defendants now appeal to this court. Appellants urge that the costs were taxed as costs of a motion for a new trial, not as costs of an appeal, and that this motion was on the calendar for one term only, so that the thirty dollars for three term fees were erroneously allowed. The appellants further urge that the case and exceptions were made and served by them, not by the plaintiff, and that it was, therefore, improper to allow plaintiff twenty dollars for making and serving said case on appeal, and that the ten dollars allowed on the ground that the case exceeded fifty folios was improper, both because plaintiff did not make and serve the case and because said case did not in point of fact contain fifty folios. The appellants’ contentions seem well founded as to the thirty dollars term fees and the ten dollars for the case being over fifty folios; but the twenty dollars for making and serving the case on appeal seems to have been decided already against defendants’ contention by the Appellate Term on the appeal above referred to, 49 Mise. Eep. 218. We do not agree with this contention, as the precise question here presented did not come up on the former appeal. The case and exceptions were not made by this plaintiff, but by the defendants. All the plaintiff did was to print the papers enumerated in the order appealed from, 5 which included the case and exceptions already made by defendants. The plaintiff cannot have costs for the making of a case and exceptions which were not made by him but by defendants.

The order must be reversed as to all the three items in question, with ten dollars costs of this appeal and disbursements.

Present: Gildersleeve, Levektritt and McCall, JJ.

Order reversed as to all three items, with ten dollars costs of this appeal and disbursements.  