
    N. Y. SUPERIOR COURT.
    Thomas Murtha, respondent, agt. Michael Curley, impleaded, &c., appellant.
    
      Costs—Judgment reversed on appeal to general term with costs of appeal to appellant defendant—On appeal to court of appeals, order of general tenn was reversed, and judgment of trial term was affirmedr with costs to plaintiff—Who entitled to costs of general term.
    
    When plaintiff obtained on trial of an action a judgment against a d'efend- ■ ant, who appealed to the general term which reversed the judgment of the court below, with costs of appeal to the defendant appellant to abide the event of a new trial. On appeal by plaintiff to the court of appeals the order of the general term was reversed and judgment of trial term was affirmed, with costs to plaintiff :
    
      Held, that the plaintiff was not entitled to the costs of the general term. The words “ with costs” in the order of the court of appeals means the costs in that court (Reversing S. C., ante, 222).
    
      General Term, January, 1883.
    
      Before Sedgwick, C. J., Tbuax and O’G-orman, JJ.
    
    Appeal from an order made at special term directing the clerk to tax certain costs.
    
      The plaintiff obtained, on the trial of the action, a judgment against the defendants for a certain sum of money. .From this judgment the defendant Curley appealed to the general term of'this court, which reversed the judgment of the court below, with costs of appeal to the appellant, to abide the event of a new trial. The plaintiff appealed to the court of appeals. The order of the general term of this court was reversed by the court of appeals, and the judgment of the trial term was affirmed, with, costs to the plaintiff. The plainr tiff then presented his bill of costs for taxation to the clerk, who refused to tax the costs of the general term in favor of plaintiff. The plaintiff then moved at special term for a retaxation of said costs, and the special term made an order directing the clerk to allow to the plaintiff the costs of the general term.
    
      Starr & Hooker, for appellant.
    
      Adolphus D. Pape and H. S. Bennett, for respondent.
   Truax, J.

The order of the general term limited the recovery of the costs of the general term to the defendant Curley, who was the successful party on the appeal to the general term, only in the event that he should finally succeed in the action. The general term had the power to reverse the judgment, with costs to abide the event, in which event the party finally succeeding in the action would have been entitled to tax the costs of an appeal or trial at which he had been beaten (84 N. Y., 469).

The costs to be awarded upon the granting of a new trial are in the discretion of the general term, and may be awarded to either party absolutely, or to abide the event (Code of Civ. Pro., sec. 3238.)

In this case the general term saw fit to award the costs of the appeal to the defendant Curley. It did not award them to the plaintiff. The plaintiff could not have them in any event, because he did not maintain the judgment in his favor (Howell agt. Van Sicklen, 8 Hun, 525). It is true that the court of appeals reversed the judgment of the general term, “ with costs,” but the words “ Avith costs ” in the order of the court of appeals means the costs in that court (68 N. Y., 628).

The order of the special term should be reversed, with ten dollars costs of the appeal and disbursements, and the taxation of the clerk should be affirmed.  