
    Byrne v. Brooklyn City and Newtown R. Co.
    (City Court of Brooklyn—General Term,
    November, 1893.)
    After a jury had heen impaneled and plaintiff had opened his case, an application by defendant asking leave to withdraw a juror on the ground of surprise was granted on condition that defendant pay plaintiff or his attorney all the costs and disbursements to date. The costs were duly taxed and paid. In the costs as taxed were included the following items : “ Before notice of trial, $25; after notice, §15 ; trial fee, $30; term fees, $50.” When the case was tried plaintiff had a verdict, and the costs and disbursements were taxed at $270.79, which included the items above referred to. The Special Term on a motion for retaxation struck out said items on the ground that they had already been paid. Held, that the order striking out said items should be affirmed.
    Appeal from an order striking out certain items of a bill of costs.
    
      
      J. Stuart Ross, for plaintiff (appellant).
    
      Morris & Whitehouse, for defendant (respondent).
   Osborne, J.

This case first came on for trial on February 9, 1893, and a jury having been impaneled and the case opened on behalf of the plaintiff, defendant asked leave to withdraw a juror on the ground of surprise; after argument, the application was granted on the condition and stipulation that the defendant pay to plaintiff or her attorney all the costs and disbursements in the action to date,” to be taxed by the clerk; said costs and disbursements were duly taxed and were paid by defendant. In the costs were included the following items: Before notice of trial, $25; after notice, $15 ; trial fee, $30 ; term fees, $50.” Subsequently the case came on for trial again, and plaintiff obtained a verdict in her favor, and her costs and disbursements were taxed by the clerk at $270.79, and there was included therein the above-mentioned items, amounting in all to $120. On a motion for retaxation, an order was made at Special Term striking out said disputed items, on the ground that they had already been paid, and plaintiff now appeals from that order. The learned counsel for the plaintiff here contends that the costs paid as a condition for the adjournment were in the nature of a penalty, and as a compensation to the plaintiff for the loss, annoyance and delay incurred by her, and that, on a recovery by plaintiff after a trial, she had a right to recover a full bill of costs; that to now.deduct the disputed items would result in depriving the plaintiff of the compensation intended as an offset to the favor granted her adversary.

We do not think that the contention of the appellant can be maintained. The order granting leave to withdraw a juror was conditioned on the payment of all the costs and disbursements in the action to date ; ” nowhere in the order is there any intimation that the amount to be paid was in the nature of a penalty, or other than “ costs and disbursements ” as provided by the Code of Civil Procedure. Plaintiff benefried by the order granting leave to withdraw a juror in that she was paid at once, and in advance of a trial, all the costs that had then accrued, while, if left to abide the event, their payment would have been contingent on her ultimate success, and jshe might never have become entitled to them. The effect of the order was to compensate plaintiff for all that had gone before, as if she had succeeded on the case as it then stood; thereafter a fresh start, as it were, was made, and defendant became liable for only such costs ultimately accruing as might be taxed by the plaintiff in the event of her succeeding in the action.

The weight of authority is decidedly in favor of our construction of the order granting leave to withdraw a juror. Andrews v. Cross, 17 Abb. N. C. 92; Schmidt v. Mackie, 9 Wkly. Dig. 288; Seymour v. Ashenden, 13 Civ. Proc. Rep. 255; Skinner v. White, 69 Hun, 127, are all cases supporting our view. The cases relied on by the learned counsel for the appellant are, with one exception, not in point. In Lennon v. McIntosh, 19 Abb. N. C. 175, defendant’s default was opened on payment of $20, costs,” and on plaintiff obtaining a verdict, he was allowed to tax a full bill of costs, on the ground that the twenty dollars were allowed by way of penalty. In Dovale v. Ackerman, 24 Abb. N. C. 214; Donovan v. Board of Education, 1 Civ. Proc. Rep. 311, and in Havemeyer v.Havemeyer, 48 N. Y. Super. Ct. 104, the party who had paid costs, as a condition for favor granted, ultimately succeeded, and was allowed a full bill of costs, while in the case at bar, the party who has receimed the costs is seeking to recover them a second time.

The case of Cohu v. Husson, 13 Daly, 334, is in support of the contention of the learned counsel for the appellants, but it stands alone, and we cannot concur with the reasoning by which the decision in that case was reached.

The order appealed from should be affirmed, with costs.

Yaw Wyok, J., concurs.

Order affirmed, with costs.  