
    George Miller, Appellant, v. John King and John G. McCullough, as Receivers of The New York, Lake Erie and Western Railroad Company, Respondents.
    
      Costs — where there is an affirmance on appeal, with costs, and, ón a reargument a reversal and a new trial is granted, costs to abide the event.
    
    Where, on an appeal by the defendant, a judgment is affirmed at the General Term, with costs, and a reargument is thereafter ordered on tl)e defendant’s motion, on which the judgment is reversed and a new trial is granted, costs to abide the event, and on the retrial the plaintiff recovers judgment, he is entitled to insert in his bill of costs the costs on the first argument and a further item of forty dollars for the reargument of the appeal, but he is not entitled to include therein more than one item of twenty dollars for costs before notice of argument.
    Appeal by the plaintiff, George Miller, from an order of the Supreme Court, made at the Orange Special Term and entered in the office of the clerk of the county of Orange on the 21st day of February, 1898, denying the plaintiff’s motion for a retaxation of the costs.
    
      John W. I/yon, for the appellant.
    
      Henry Bacon, for the respondents.
   Woodward, J.:

On the original trial of this action the plaintiff was given a verdict. Fiurn the judgment entered, the defendants appealed to the General Term, where the judgment was affirmed, with costs. On motion of the defendants a reargument was ordered, and on this reargument the' j udgment was. reversed and a new trial granted, costs to abide the event.. • On the retrial the jury again found for the plaintiff, who, in taxing his costs, inserted items of twenty dollars before argument and forty dollars for argument on both arguments before the General Term. The items charged on the first argument were stricken from the bill by the' clerk. This "action on the part of the-clerk was sustained by the Special Term, and from the order entered this appeal is taken.

We are unable to see any good reason why the-plaintiff should not be allowed costs on both arguments. On the first argument the judgment was affirmed, with costs, and on the reargument the judgment was reversed and a new trial granted, costs to abide the event. The new trial resulted in a verdict for the plaintiff., Both of these .arguments were at the .request, and for the benefit of the defendants, and the plaintiff, having succeeded, is' clearly entitled to the costs growing out of the effort of the defendants to defeat recovery. In the case of Guckenheimer v. Angevine (16 Hun, 453) the plaintiffs recovered a verdict, and the defendant moved for a new trial -on a case. The motion was argued and submitted at a Special Term "held .by a justice of this court, who did not decide it, but subsequently ordered that it be reargued before another judge, and it was so reargued at a subsequent term, and the motion was denied. The clerk, in taxing the costs, allowed the plaintiffs two argument fees* to which defendant objected. The Special Term sustained the objection, holding that plaintiffs were entitled to but one fee. An appeal was. taken to the General Term of the fourth department, .and the court say: “ On the.merits we are of the opinion.that the plaintiffs were entitled to the argument fee given by statute for each .argument. It does not appear that the necessity for a reargument was caused by any act or omission on their part, and two arguments having been, in fact, made, we think the items were properly taxed.” 'This, it will be observed, was a case where the reargument -was due to the refusal of the court to act, while in the case at bar both arguments were upon the motion of the defendants, and the fact that the court may have erred on either of the arguments is no reason why the plaintiff -should be made the victim of costs brought on by the .motion of the defendants for a reargument.

In the case of Sweet v. Chapman (53 How. Pr. 253) the plaintiff had secured a verdict at the Circuit, from which the defendant appealed. The General Term affirmed 'the judgment, and the defendant moved the General Term for leave to go to the Court of Appeals. The defendant paid the costs of the appeal, including forty dollars for argument. Thereafter the General Term ordered a reargument, and upon such reargument granted a new trial, with costs to abide the event. A new trial was had and the plaintiff again secured a verdict and taxed the costs, including forty, dollars for reargument. Commenting upon this state of facts, Justice Hardin says: “A trial is defined to be ‘ the judicial examination of the issue.’ An argument takes place prior'to a judicial decision of .the issues in a case. There had been an argument and decision. Costs were allowable, and properly taxed and paid. They were paid ' for argument of the appeal,’ the judgment was affirmed, the costs paid, and, of course, the plaintiff satisfied. But upon defendant’s application a reargtiment was ordered. He it was who imposed the labor of a reargument that took place, and the court thereupon reversed, the judgment and ordered a new trial, with costs to abide the event. The court expressly ordered the costs to abide. That, of course, covered statutory costs to the successful party. By subdivision 1 of section 306 of the Code the costs of an appeal are in the discretion of the court when a new trial is ordered. The discretion was, therefore, properly exercised by the General Term when it reversed the -judgment and ordered a new trial. The plaintiff would have no compensation for the reargument if this item was not allowed. . (3 Den. 259, and note; 1 How. 236; 2 Hill, 357.)”

In the case of First National Bank of Meadville v. The Fourth National Bank of New York (84 N. Y. 469) the plaintiff obtained judgment, which was affirmed oh appeal to the General Term, but it and the judgment of the General Term were reversed on appeal to the Court of Appeals, “ with costs to abide the event.” A new trial was had and the plaintiff was again successful, and the clerk allowed and taxed the costs of the appeal to the Court of Appeals. The court say: “The plaintiff is entitled to.tax the costs of.the appeal to this court. The first judgment was reversed, with costs to abide the event. The event of the new trial was the circumstance which was to determine which party should recover the costs of the appeal. The order did not limit the recovery of costs to. the prevailing party on the appeal, in case he should finally succeed in the action. Appeals are often taken for technical. errors which do not affect the merits, and although the appellant is 'successful, the effect of such appeals in many cases is simply to protract and increase the expense of the litigation. There is generally no injustice in a/warding costs on the appeal to the party who shall finally recover. It is conceded that the plaintiff is entitled to tax the costs of both trials. This is the undoubted practice, although the first judgment i/n his fa/oor was erroneous. In analogy he should, be allowed to tax the costs of the appeal. We have often limited the recovery of costs on appeal to one of the parties* hut where the order reversing a judgment and granting a new trial is made with costs to abide the event, without other limitation, we tmderstand that the party finally succeeding in the, action is entitled to tax them.”

In the case of Willard v. Harbeck (3 Den. 260) the plaintiffs recovered on a hearing before referees. Several hearings were noticed, the plaintiffs each time appeared with their witnesses, and on' three occasions the hearing fell through because of the absence of one of the referees. Plaintiffs’ attorneys charged an attorney and counsel fee amounting to six dollars for each appearance, together with other items. The court, on a motion for retaxation of costs, say : “ The appointed hearing fell through several times without any fault on the part of the plaintiffs, and we see no reason why they should not be allowed the costs of preparing and attending on those occasions.”

.In the case of Carpenter v. The Manhattan Life Ass. Co. (25 Hun, 194) the plaintiff secured a verdict for ten dollars. A motion for a. new trial upon the minutes was denied, and judgment' was 'entered in favor of the defendant for the costs. The plaintiff appealed to the General Term, which reversed the judgment and ordered a new trial, with costs to abide the event. On the new trial the plaintiff secured a verdict for $491.25. The clerk disallowed' the plaintiff’s costs and disbursements for the first trial, and upon, appeal by plaintiff therefrom an order was made at Special Term affirming the action of the county clerk. On an appeal coming to the General Term of the second department, the court said : If the correct judgment had been reached upon the first trial the plaintiff would have been entitled to costs. An incorrect rule of damages having' been laid down, he thereby failed to get a verdict for an amount sufficient to entitle him to costs. He was bound even to pay costs to his adversary. Upon appeal the judgment was reversed and a new trial granted to the plaintiff, costs to abide the event. This event was the result of the second trial. It was-in favor of the plaintiff for an amount establishing plaintiff’s right to costs. This includes all the costs of the action as well of the first trial as of the appeal and the new trial.”

The case of Bigler v. Pinkney (24 Hun, 224), relied upon by the defendant, is not in point. In that case the plaintiffs had judgment on the report of a -referee, and the defendant moved for an order requiring the referee to make further findings. On this request being denied, an appeal was taken to the General Term, which affirmed the judgment. Defendant then appealed to the Court of Appeals, which reversed the judgment and directed the referee to make further findings. The court further decided that the defendant- have costs of the apjieal 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. There was a reargument of the cause at the General Term after the additional findings were made by the referee, which resulted in an affirmance of the judgment, and thereupon the plaintiffs taxed costs of the appeal from the judgment of the General Term, costs of the appeal to the Court of Appeals, and costs of the reargument at the General Term. The court say: “ 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 judgment of the plaintiff was reversed he cannot be allowed costs of the General Term.”

In the case at bar the plaintiff had a judgment. It was affirmed at General Term. On a reargument the judgment was reversed and a new trial granted, costs to abide the event. On the retrial the plaintiff was again successful, and under the rule recognized in the case of Bigler v. Pinkney(supra) the costs were taxable against the defendants, because they were' made contingent upon the outcome of the trial by the decision of the court in granting the new trial.

We see no reason, however, for allowing the item of twenty dollars before notice of argument to be taxed more than once.

While it is true that there has been a diversity of opinion upon the first question, we are convinced that the weight of reason, of justice and authority, are in favor of reversing the order of the court below and of granting the- motion for a retaxation of costs, with tire costs of this appeal.

All concurred.

Order reversed, with ten dollars costs and disbursements and clerk directed to tax the additional sum of forty dollars for second argument on appeal to. General Term.  