Whitney v. Saxe. WHITNEY . SAXE. CITY COURT OF NEW YORK, SPECIAL TERM, DECEMBER, 1888. § 3251, subd. 4. Costs-what, taxable on appeal, from order denying motion for new trial on newly-discovered evidence. Where a motion for a new trial upon newly-discovered evidence was made upon the minutes after a case made, and denied, the successful party, upon the affirmance of the order on appeal, is entitled, not to motion costs, but to full costs, as provided in Code Civil Procedure, section 3251, subdivision 4. (Decided December 6, 1888.) Motion by defendant for a readjustment of costs. The plaintiff, having been defeated upon the the trial of this action, moved at special for a new trial, upon the ground that there was newly-discovered evidence in his favor. This motion was made after the making and settlement of a case, and upon the minutes. The motion was denied, and the plaintiff appealed to the general term of the city court from the order denying the motion, and it was there affirmed. The defendant presented to the clerk a bill of costs amounting to $15.85, being $10 costs, and $5.85 disbursements. Thereafter he presented an amended bill of costs to the clerk, which he refused to tax. The defendant thereupon made this motion upon an affidavit, in which he stated that the bill of costs taxed, was served and taxed by mistake, although, according to subdivision 4, of section 3251 of the Code of Civil Procedure, the defendant was and is entitled to $70 costs on said appeal, exclusive Ury v. Wilde. of disbursements, which fact was discovered since said adjustment, and that no judgment had been entered or other proceedings taken since said adjustment. Elias G. Levy, for defendant and motion. Joseph Stewart, for plaintiff, opposed. NEHRBAS, J.-Upon examination of the record on appeal, and the opinion of the general term, it appears that the motion for a new trial upon newly-discovered evidence was made upon the minutes of the trial after a case made. The successful party is, therefore, entitled to a full bill of costs, not as upon a motion, but, in accordance with section 3251 of the Code, as for a new trial. URY v. WILDE. SUPERIOR COURT OF THE CITY OF NEW YORK, SPECIAL TERM, DECEMBER, 1888. $$ 3228, 3229, 3234. Costs-right to-when both parties cannot recover. Where the plaintiff in an action, specified in section 3228 of the Code of Civil Procedure, fails to establish his cause of action and the defendant also fails to establish a counter-claim set up in his answer, the plaintiff is not entitled to costs, but the defendant is. The only case in which both parties to an action are entitled to costs therein, is one specified in section 3234 of the Code of Civil Procedure, where a complaint sets forth two or more causes of action, upon some of which the defendant is successful, and upon others of which the plaintiff succeeds. Ury v. Wilde. Kalt v. Lignet (12 How. Pr. 535; aff'd, 3 Abb. Pr. 190), distin guished and not followed. (Decided December 5, 1888.) Motion by plaintiff for a new taxation of costs. This action was brought to recover $480 upon contract. The defendant set up in his answer a counter-claim for $200. The case was tried before the court and a jury, and resulted in a verdict in favor of the defendant for one dollar. Both plaintiff and defendant presented bills of costs to the clerk for adjustment, and he refused to tax the plaintiff's bill, but allowed the defendant's bill of costs. The plaintiff thereupon made this motion. John Frankenheimer, for plaintiff and motion. Foster, Hotaling & Blank, for defendant, opposed. TRUAX, J.—The right of a party to an action to costs in that action depends upon the Code of Civil Procedure. The plaintiff is entitled to costs in certain actions "upon the rendering of a final judgment in his favor" (§ 3228). The final judgment in this action not having been rendered in his favor, the plaintiff is not entitled to costs. Section 3229 provides that the defendant is entitled to costs "upon the rendering of final judgment in an action specified in the last section, unless the plaintiff is entitled to costs, as herein prescribed." It has been shown that under section 3228, the plaintiff is not entitled to costs. It, therefore, follows that the defendant is entitled to costs. This view of the law is sustained by section 3234 of the Code of Civil Procedure, which provides that in an action specified in section 3228, wherein the complaint sets forth separately two or more causes of action upon which issues of fact are joined, if the plaintiff recovers upon one or more of the issues, and the defendant upon the other or others, Ury v. Wilde. each party is entitled to costs against the adverse party, unless it is certified that the substantial cause of action was the same upon each issue, in which case the plaintiff only is entitled to costs. There is no other section of the Code that gives both the plaintiff and the defendant costs in the same action. The case of Kalt v. Lignet (12 How. Pr. 535; aff'd, 3 Abb. Pr. 190), is cited as authority for the proposition that where the plaintiff sues to recover $1,000, and the defendant denies the plaintiff's right to recover, and sets up a counter-claim for $200, and the judgment is for the defendant in an amount less than the counter-claim, each party is entitled to costs as against the other. That case was decided in 1856, when the Code said that "the prevailing party" was entitled to costs. It was decided upon the theory that in a case of the kind mentioned above each party was the prevailing party-the plaintiff had prevailed in cutting down defendant's counter-claim, while the defendant had prevailed by defeating the plaintiff's cause of action. The case of Kalt v. Lignet (supra), was cited by the general term of this court in 1 Sweeny, 363, upon another point. It was disapproved in Landsberger v. Magnetic Tel. Cɔ. (8 Abb. Pr., 35), and is not, I think, an authority under the present Code (see Thayer v. Hollond, 68 How. Pr. 179; Whitelegge v. De Witt, 12 Daly, 319). The taxation of the clerk is sustained, with $10 costs. |