
    SANDERS v. TOWNSHEND.
    
      N. Y. Common Pleas ; Special Term,
    June, 1882.
    Costs to Abide the Event.
    Defendant recovered judgment, which was reversed by the general term on plaintiff’s appeal, and a new trial ordered, with costs to abide the event; defendant appealing; the court of appeals reversed such order and affirmed the original judgment, with costs. Held, that defendant was entitled to costs of the appeal to the general term.
    
    Defendant recovered a judgment, which was entered June 21,1880, from which plaintiff appealed to the general term, and the j ndgment was reversed, and a new trial ordered April 12, 1881, with, costs to abide the event. Upon appeal by defendant to the court of appeals the order of the general term was reversed and the judgment at circuit affirmed, with costs.
    
      The clerk on taxation disallowed the defendant’s costs on appeal to the general term, and this motion was made by defendant for a re-taxatiori under section 3356 of the Code of Civil Procedure.
    
      Jacob Fromme, for motion.
    
      Jos7ma O. Sanders, opposed.
    
      
       To appreciate the conflict in the cases on this subject, and to judge which of them are sound, and how far, it should be observed that two very different questions are involved, viz. :—1. What rule should govern the discretion of the court in awarding costs on grant, ing a new trial ; and,
      2. What is the effect, in any particular case, of the order or brief memorandum in which the court awarding costs have expressed their intention in that regard.
      By section 3239 of the Code of Civil Procedure, costs on appeal from an interlocutory judgment or order, “ are in the discretion of the court, and may be awarded absolutely or to abide the event, ” except that on refusing a new trial on appeal from an order granting or refusing it, the respondent is entitled, of course, to costs of appeal, and that where appeal is taken from an order refusing a new trial and from the judgment, costs of appeal from the judgment are alone allowable.
      In the exercise of their discretion, the courts have not indicated any very settled rules beyond holding that where a new trial is ordered because the verdict is against the weight of evidence or contrary to evidence, it is usually upon condition that the party obtaining a new trial shall pay costs (Supm. Ct., 1873, Murphy v. Haswell, 65 Barb. 380 ; 1875, Bailey v. Park, 5 Hun, 41). Otherwise where it is granted on the ground of legal error at the trial (Ct. of App., 1873, Anderson v. Rome, &c. R. R. Co., 54 N. Y. 334 ; Brooklyn City Court, 1876, Henderson v. Henderson, 2 Abb. N. C. 102). In the latter class of cases, costs are usually awarded, but some difference of opinion or usage exists as to whether they should be awarded absolutely to the party succeeding in obtaining a new trial, as a compensation for his labor in vindicating his right to it ;—or should be awarded to him only in case he succeeds in the final event of the action, upon the' view that if his case is without merit and his appeal is successful only upon technical grounds or for delay, he ought not to have such indemnity ;—or whether the court should direct that the party ultimately successful in the action shall have the costs of the appeal, upon the view that an appeal resulting in a new trial, is only a part of the expense of the litigation, which ought to be thrown on the party finally unsuccessful, not thrown on the successful party, merely because he was unsuccessful in a particular proceeding. The court of appeals prefer the latter view as a general rule. They say,—by Andrews, J., in Taylor v. Wing (84 N. Y. 471),—“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 awarding costs on appeal to the party who shall finally recover.”
      The supreme court in the first department, after some difference of opinion, hold as a general rule, that the party unsuccessful on the appeal should not have costs of the appeal, although he be finally successful in the action (Union Trust Co. v. Whiton, 17 Hun, 593; affirmed in effect in 78 N. Y. 491). The supreme court in the second and third departments (Van Wyck v. Baker, 11 Hun, 309; Donovan v. Vandemark, 22 Id. 307), and the New York common pleas (see case in text, and Mott v. Consumers’ Ice Co., 8 Daly, 244) prefer the principle applied by the court of appeals.
      This is the only question of principle involved. It is a question resting in the discretion of the court, and ought to be intelligently determined by them and, clearly expressed in the memorandum handed down and the order entered.
      The principal conflict in the cases results from inattention to the foregoing distinctions, and .the consequent neglect to express clearly in the order entered the determination made by the court. Some of the cases are clearly correct, as for instance, Howell v. Van Siclen (4 Abb. N. C. 1; S. C., 8 Hun, 524), where the award was expressly “ with costs to the defendant to abide the event.” And it was held that this did not give them in any event to the plaintiff. It is clear that such language as this gives costs in no case to the plaintiff, although he may ultimately succeed, and that it does give them to the defendant, conditioned upon his succeeding.
      It is obvious that where the language is, “new trial ordered: costs to abide the event,” the contrary interpretation would not be improper. The question is in each case whether the court meant to award “ a new trial with costs to the party obtaining it, to abide the event; or to award a new trial, with a direction that costs shall follow to one or the other party according to the event. The point settled is that if the order is ambiguous in this respect, the court who made it can construe it, and with its construction another court will not interfere.
      According to the English rule, the “ event ” is the result of all the proceedings incidental to the litigation (Field v. Great Northern Railway, 39 L. T. Rep. N. S. 80; 3 Ex. Div. 261); but when plaintiff and defendant each gain as to part of the causes of action, the word “ event” must be read distributively, so that each is entitled to part of his costs (Myers v. Defries, 42 L. T. Rep. N. S. 137; 5 Ex. Div. 15, 180).
    
   ' Van Hoesen, J.

The action has ended. The event, i. e., the result of the litigation, was that the defendant obtained judgment. The costs of the appeal to the general term abided, i. e., depended upon, the final result of the litigation. When that result was reached, the party who prevailed became entitled to the costs of the appeal to the general term.

The costs of that appeal belong, therefore, to the defendant, the party finally prevailing in the litigation.  