
    COURT OF APPEALS.
    First National Bank of Meadville, Penn., appellant, agt. Fourth National Bank of New York, respondent.
    
      Costs on appeal—to be gimen to iliepa/rty ultimately successful.
    
    Where a judgment is reversed " with costs to abide the event,” and the order is silent as to which party is to receive the costs, it means that they are to go to the one ultimately successful.
    
      Decided March, 1881.
    This action was first tried before a referee, and from the judgment in favor of the plaintiff, entered upon the referee’s report, the defendant appealed to the general term of the supreme court of the first department, which affirmed the judgment with costs. The defendant then appealed to the court of appeals, and a new trial was ordered (see 77 N. Y., 320), with “ costs to abide the event.” Upon the second trial the plaintiff again succeeded. The cleric taxed the costs of the first trial and of the appeals in favor of the plaintiff. Upon appeal from this taxation the court at special term, following the interpretation of said phrase adopted in Sheridan agt. Genet (Daily Register, December 12, 1878), and followed in Union Trust Co. agt. Whiton (17 Hun, 593), reversed the cleric and struck out the costs of the former trial and of the appeals. Upon the appeal taken from said order, the general term affirmed the order of the special term, and the plaintiff appealed to the court of appeals. • That court has now settled the question in the following opinion.
   Andrews, J.

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 awarding costs on the appeal to the party who shall finally recover.

It is contended that the plaintiff is entitled to tax the costs of both trials; and this is the undoubted practice, although .the first judgment in his favor was erroneous. In analogy he should be allowed to tax the costs of the appeal. The terms on which a new trial is granted, as respects costs, are within the discretion of the court. We have often limited the .recovery of costs on appeal to one of the parties, but where the order reversing a judgment and granting a new trial is made, with costs to abide the event, without other limitation, we understand that the party finally succeeding in the action is entitled to tax them. This construction was put upon a similar order in Koon agt. Thurman (2 Hill, 357). In Union Trust Co. agt. Whiton (78 N. Y., 491) we refused to interfere with the construction given by the general term of the first department to its own order. The question here is as to the construction of our order.

The order of the special and general terms should be reversed, and the taxation by the clerk should be affirmed.

All concur, except Rapallo, J., absent.  