
    (83 Misc. Rep. 641)
    DOBEK v. AUSTRO AMERICANA S. S. CO., Limited.
    (Supreme Court, Special Term, New York County.
    January 26, 1914.)
    1. Costs (§ 243*)—Reversal with Costs to Abide the Event. Where a judgment for plaintiff in an action for damages was reversed and a new trial ordered with costs to the appellant to abide the event, defendant was entitled to the costs of such appeal only if it was finally successful in the action, and otherwise no one would be entitled thereto, and hence, after reversal of a judgment for plaintiff on the new trial with costs to appellant absolutely, defendant could not tax costs of the first appeal without awaiting the termination of the action.
    [Ed. Note.—For other cases, see Costs, Cent. Dig. §§ 938, 939, 946; Dec. Dig. § 243.*]
    2. Costs (§ 264*)—On Appeal—Taxation. Where a judgment for plaintiff was reversed with costs to appellant absolutely, defendant could tax the costs of such appeal at once, or add them to any costs to which it might become entitled upon rendition of the final judgment, or set them off against any costs to which plaintiff might then become entitled.
    [Ed. Note.—For other cases, see Costs, Cent. Dig. §§ 1004-1008; Dec. Dig. § 264.*]
    3. Costs (§ 32*)—Right op Successful Party. In an action for damages for assault, the party finally successful is entitled to all costs in the trial court unaffected by reversals with costs to appellant absolutely or to abide the event; such provisions in the order of reversal relating only to the costs of the appeal.
    [Ed. Note.—For other cases, see Costs, Cent. Dig. §§ 108-132; Dec. Dig. § 32.*]
    Action by Frederick Dobek against the Austro Americana Steamship Company, Limited. On motion to require the clerk to tax costs. Granted in part.
    Rooney & Beha, of New York City, for the motion.
    Archibald R. Watson, Corp. Counsel, of New York City (George P. Nicholson, of New York City, of counsel), opposed.
   GIEGERICH, J.

The action is to recover damages for an alleged assault. The case has been tried twice, and a third trial has been ordered but has not yet been had. On the first trial the plaintiff recovered a judgment, which upon appeal to the Appellate Division was reversed and a new trial ordered, with costs to the appellant to abide the event. On the second trial the plaintiff again recovered a judgment, which was again reversed by the Appellate Division; a new trial being again ordered. The order of reversal upon the second appeal awarded costs to the appellant absolutely. The defendant has applied to the clerk to tax its costs and has included in its bill the costs of both trials and of both appeals. The clerk has refused to tax any costs. The effect of the orders of the Appellate Division seems quite clear. The) do not in any way affect the costs in the trial court. They relate solely to the costs of the appeals. The costs of the first appeal have been awarded to the defendant conditionally. If it is finally successful in the action, it will be entitled to these costs; otherwise no one will be entitled to them. The costs of the second appeal have been awarded to the defendant absolutely, and unless paid during the pendency of the action will be added to any costs to which it may become entitled upon rendition of the judgment which finally determines the controversy or set off against any costs to which the plaintiff may then become entiT tied. The costs in the trial court, including the costs of all trials which may have been had before a final determination is reached, will belong as a matter of right to the successful party, subject only to the provision contained in subdivision 3 of section 3228 of the Code of Civil Procedure that if the plaintiff recovers less than $50 damages his costs cannot exceed the damages. The conclusions thus indicated are sustained by the cases of Howell v. Van Siclen, 8 Hun, 524, affirmed 70 N. Y. 595; Belt v. Am. Central Ins. Co., 33 App. Div. 239, 53 N. Y. Supp. 363; Berrent v. Simpson, 61 Misc. Rep. 611, 113 N. Y. Supp. 1065.

It follows that the defendant is entitled to tax the costs of the second appeal and no other costs.  