
    Isaac Greenwald and Others, Respondents, v. Levi C. Weir, as President of the Adams Express Company, Appellant.
    First Department,
    April 8, 1909.
    Costs — appeal from order of Appellate Term—final determination. of action.
    Where an appeal is taken from an order of the Appellate Term of the Supreme Court-reversing a judgment of the Municipal Court of the city of Hew York and ordering a new trial, and the Appellate Division reverses the determination of the Appellate Term and affirms the judgment of the Municipal Court, the successful party is entitled to the costs of the appeal in both courts.
    The costs to he awarded in sueh circumstances are governed by subdivision 4 -of section 3351 of .the’Code of Civil Procedure, and are not limited to the amount provided in section 346 of the Municipal Court Act.
    An appeal from an order of the Appellate Term, which either grants or refuses a new trial, is in effect an application to the Appellate Division' for a new trial.
    Application to, resettle an order of the Appellate Division reversing a determination of the Appellate Term and affirming a judgment of the Municipal Court.
    
      Samuel J. Rawak, for the motion
    
      Arthur W. Clements, opposed.
   Per Curiam :

This action was originally commenced in the Municipal Court and resulted in a judgment for the plaintiffs for fifty dollars and costs. The plaintiff's appealed to the Appellate Term from such judgment, which reversed the judgment and ordered a new trial, with costs to the appellants to abide the event. (See 59 Misc. Rep. 431.) The defendant, by permission, appealed to this court, where the determination of the Appellate Term was reversed and the judgment of the Municipal Court affirmed (130 App. Div. 696), and the question presented upon,this application is whether this court had power to award to the appellant costs in this court.

Section 5 of article 6 of the Constitution provides that “ appeals from inferior and local courts now heard in the Court of Common Pleas for the City and County of Mew York * * * shall be heard in the Supreme Court in such manner and by such justice or justices as the Appellate Divisions * * * shall direct, unless otherwise provided by the Legislature.” Title 3 of chapter 12 of the Code of Civil Procedure regulates appeals to the Supreme Court from inferior courts. Section 1344 of the Code of Civil Procedure provides that “ appeals from the judgment of any municipal court in either of the boroughs of Manhattan or the Bronx in the City of Mew York, or from a judgment or order of the City Court in the City of Mew York, may be heard by the Appellate Division of the Supreme Court, or by such justice or justices of the Supreme Court as may be designated for that purpose by the justices of the Appellate Division sitting in the First Judicial Department.” And the provisions of title 4 of chapter 12 of the Code of Civil Procedure, relating to the hearing of appeals taken in the Supreme Court and to the subsequent proceedings thereon, apply to an appeal taken as prescribed in this title. By section 1347 (a section of title 4 of the chapter) it is provided that an appeal may be taken to the Appellate Division of the Supreme Court from an order where it grants or refuses a new trial; and section 1318 provides that, where a judgment from which an appeal is taken is reversed and a new trial is granted, an appeal must be taken from the order granting a new trial, and the judgment of reversal must be reviewed upon .such appeal. The order of the Appellate Term in this ease having granted a new trial, an appeal from that determination was allowed. By section 1317 of the Code of Civil Procedure the Appellate Division of the Supreme Court may reverse or .affirm, wholly or partly, or modify the order appealed from. The appeal from the Municipal Court was taken to' the Supreme Court. It was heard by certain justices of the Supreme Court designated for that purpose by the Appellate Division, and was there decided.- As a part of the appeal to the Supreme Court, the statute allows, under certain conditions, an appeal from the deter- mination of the Appellate Term to the Appellate Division. The appeal from the judgment of the Municipal Court, however, is still in the Supreme Court and being reviewed by that court under the provisions of the Constitution and the Code of Civil Procedure, before cited. Section 3238 of the Code of Civil Procedure provides that on an appeal from a final" judgment in an action specified in section .3228, which would apply to this action, the. respondent is entitled to costs upon the affirmance, and the appellant to costs upon the reversal of the judgment appealed from. And under section 3239 of the Code of Civil Procedure, where the appeal is taken from an order granting or refusing a new trial, and the decision upon the appeal refuses a new trial, the respondent is entitled, of course, to the costs of the appeal.

Reading these two sections together, it seems clear that upon the appeal to the Supreme Court, which includes the appeal heard by ■ the justices at the Appellate Term as directed by the Appellate Division, and the subsequent appeal to the Appellate Division from the determination of the Appellate Term, if the final result refuses a .new trial and affirms the judgment of the-Municipal Court, "the respondent in whose favor the judgment was entered, is entitled to the costs of the appeal in both courts, which became necessary to obtain the final determination of the Supreme Court upon the question as to whether the judgment of the Municipal Court should be affirmed.

The amount of costs is regulated by section 3251 of the Code. Subdivision 4 of that section provides that “ to either party, upon an appeal to the Supreme Court from an inferior court, excepting upon an appeal to the Supreme Court from the City Court of the City of ISTew York; or upon an appeal to the Appellate Division of the Supreme Court * r * * taken from an interlocutory or final judgment, or from an order granting" or refusing a new trial, rendered or made at a Trial Term of the Supreme Court * * * ; or upon an application to the Appellate Division of the Supreme Court for a new trial, or for judgment upon a verdiet, rendered subject to the opinion of the court, or where exceptions are ordered to be heard in the first instance at a term of the Appellate Division of the Supreme Court,” costs shall be allowed as there fixed. By section 346 of the Municipal Court Act (Laws of 1902, chap. 680) costs upon appeal are awarded to the appellant upon reversal, thirty dollars, and to the respondent upon affirmance, twenty-five dollars.

This provision would regulate the costs upon an appeal to the Supreme Court;' but where an application is made to the Appellate Division for a new trial section 3251 of the Code of Civil Procedure applies, and the costs on such application are awarded as therein prescribed. We think an appeal from a determination of the Appellate Term which either grants or refuses a new trial is in effect an application to the Appellate Division for a new trial. The appeal being to the Supreme Court, a term of the court held by three justices designated by the Appellate Division has determined the appeal by awarding a new trial. An appeal from that determination to this court having been allowed, the question is still before the court as to whether or not the plaintiff was entitled to a new trial; the question that this court had to determine was whether such new trial should or should not be ordered, and the application, therefore, was to the Appellate Division for a new trial.

We think, therefore, that this application to reverse the determination of the Appellate Term was fairly within this provision of section 3251 of the Code of Civil Procedure, and entitles the successful party in this court to the costs there awarded.

The application to resettle the order is, therefore, denied, with ten dollars costs.

Present — Patterson, P. J., Ingraham, Clarke, Houghton and Scott, JJ.

Motion denied, with ten dollars costs.  