
    Frederick C. Durant, Executor, etc., App’lt, v. William P. Abendroth, Impleaded, etc., Resp’t.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed March 28, 1888.)
    
    1. Costs—When new trial ordered, costs to abide the event, dobs NOT ENTITLE APPELLANT TO COSTS OF APPEAL IN ANT EVENT.
    Upon the trial of this action a verdict was directed in favor of the plaintiff for certain causes of action mentioned in the complaint, and for the defendant upon other and distinct causes of action contained in the same complaint. An appeal had been taken by the plaintiff from a preceding judgment in the defendant’s favor. Upon that appeal the defendant was unsuccessful, and the judgment which had been recovered in his favor was reversed and a new trial ordered; the order directed the costs to abide the event of the action. Held, that this direction did not authorize the party, in whose favor the judgment reversed had been recovered, to an allowance of the costs of the appeal, even though he succeeded eventually and finally in the litigation. First Hat. Bank v. Fourth Hat. Bank, 84 N. Y., 4G9, and Murtha v. Curley, 92 id., 359, distinguished!
    2. Same—Who entitled to costs of first trial.
    The defendant was entitled to the costs of the trial in which he was successful, and the judgment upon which was reversed in the disposition of the appeal.
    3. Same—Witnesses’ fees—Affidavit—What it mtst contain.
    A party is not entitled to have witnesses’ fees included in his bill of costs as taxed without an affidavit showing that the witnesses had been sworn upon the trial, or, if they were not sworn, that their attendance had been obtained in good faith with expectation that their evidence would become material in the trial of the issues.
    Appeal from an order denying a motion for a re-adjustment of the defendant’s costs.
    
      
      Carlisle Norwood, Jr., for app’lt; William II. Arnoux and David F. Butcher, for resp’t.
   Daniels, J.

Upon the trial of this action a verdict was directed in favor of the plaintiff for certain causes of action mentioned in the complaint, and for the defendant upon other and distinct causes of action contained in the same complaint. This direction entitled the defendant to costs under section 3234 of the Code of Civil Procedure, but in their adjustment the costs and disbursements of an appeal taken by the plaintiff from a preceding judgment in the defendant’s favor, were allowed to the defendant as part of the costs he was considered entitled to recover. Upon that appeal the defendant was unsuccessful, and the judgment which had been recovered in his favor, was reversed. In reversing the judgment and ordering a new trial, the order directed the costs to abide the event of the action. This direction has been considered by this court not to authorize the party in whose favor the judgment reversed had been recovered, to an allowance of the costs of the appeal, even though he succeeded eventually and finally in the litigation.

It has been held by this general term, the opinion being delivered by Mr. Justice Bradt, in the case of Sheridan v. Janette, that the party finally succeeding, should not be allowed the costs of an appeal taken to correct an erroneous ruling, which had resulted from the position taken by him in the course of a previous trial. This conclusion commended itself to the adoption of the court, for it was considered unjust to allow a party, through whose act costs were needlessly accumulated, to avail himself of the advantage of an indefensible position taken by him, and in that manner finally secure their allowance. And a direction that the costs of the appeal resulting in the reversal of the judgment should abide the event, was not considered entitled to be construed in such a manner as to give such costs to the unsuccessful party in the appeal. They were made discretionary by section 3238 of the Code of Civil Procedure, and it was regarded as the best exercise of that discretion, not to allow such costs to be recovered by the party, whose conduct had erroneously subjected the other side to the necessity of incurring them.

A difference of opinion has existed as to the construction of this direction in the order, and in Comly v. Mayer, etc. (1 Civil Pro. Repts., 306) it was held at the special term that the successful party in the litigation might recover such costs. But this was not in harmony with the decision of the general term in the case already mentioned, a report of which is contained in a note to the case just cited (page 309). And the same ruling was followed in Union Trust Co. v. Whiton (17 Hun, 593). And an appeal from that decision was dismissed by the court of appeals and the case again reported in 78 N. Y., 491. This dismissal of the appeal proceeded upon the ground that it was for the general term to construe and carry its own discretionary order into effect.

On the hearing of the motion at the special term, the conclusion was adopted that the court of appeals had after-wards prescribed a different rule for the construction and effect of this direction in an order of reversal, but this construction was given only to the orders made in the court of appeals. First Nat. Bank, etc. v. Fourth Nat. Bank, 84 N. Y., 469; Murtha v. Curley, 92 id., 359. That court has held in these cases that such a direction contained in its own orders will entitle the unsuccessful party upon an appeal, to claim and adjust in his favor the costs of the appeal where he may be finally successful in the action. The decisions apply to the orders of the court of appeals and not to the orders of the general term of the supreme court. As to these orders, no change has been made in the. decision previously announced, declaring it to be for the general term to determine what construction should be given to this language when inserted in its own order. The costs on the appeal therefore, including the stenographer’s fees for copy of his minutes, and amendments to the case, and all disbursements attending the appeal, should not have been allowed to the defendant upon the adjustment made in the action.

The costs of the trial in which the defendant was successful and the judgment upon which was reversed in the disposition of the appeal, stand upon a different ground. The action was one where the successful party by the provisions of the Code was entitled to recover such costs. They were in no manner discretionary. And as to the costs of the trial, which were objected to, they were legally allowed. Howell v. Van Siclen, 8 Hun, 524.

But in allowing these costs, items were included which the defendant was not entitled to have adjusted in his favor. The witnesses’ fees claimed by him could not be allowed without an affidavit, and that which was made to sustain his right to such fees, was wholly insufficient. It did not show that the witnesses had been sworn upon the trial, or if they were not sworn that their attendance had been obtained in good faith with the expectation that their evidence would become material on the trial of the issues. It was wholly insufficient. And the allowances made for witnesses’ fees should also be stricken out of the bill unless upon a re-adjustment, a proper affidavit entitling the defendant to these fees shall be produced.

There seems to be no legal ground of objection to the term fees included in the bill, nor to the charge for affidavits and acknowledgments, or for the fees of the clerk for entering the first judgment, or the expenses paid for a copy of the opinion of the court, or the fee paid to the clerk for a copy of the minutes on the first trial, but the charge for a satisfaction piece and the sheriff’s jury fees seems to be without support. As to them they should be excluded from the bill unless some evidence shall be produced authenticating and sustaining them. The order should be reversed and an order entered directing a re-adjustment of the costs by excluding from the bill the items which the clerk should not have allowed,including the witnesses’ fees, unless a further and sufficient affidavit shall be produced sustaining the defendant’s right to the allowance of these fees. And no costs, either on the appeal or the decision of the motion, should be allowed to either party.

Van Brunt, P. J., and Brady, J., concur.  