Provost v. Farrell

The plaintiff’s application for a new trial was not made under the provision of the Revised Statutes on that subject (2 R. S., 309, § 37), but was addressed to the discretion of the court. Hence the court had power to grant it upon terms less- severe than the statute cited prescribes. The court exercised that power, and granted the motion upon payment of part only of the defendant’s costs of the action, viz., $150.61. That, in legal effect, determined the right to all the costs of the action which had accrued prior to the entry of the order granting a new trial, except the costs of the appeal, in *306favor of tbe defendant,' limiting the amount thereof, however, to the sum named. After such an order neither party would be entitled to claim costs which had been so adjusted and ordered paid. The costs of the first trial, and of the second trial must, therefore, be disallowed. The items for stenographer’s fees, and maps are not taxable.

The result is, that the plaintiff is entitled to tax only the costs and disbursements of the appeal, and other costs which have been incurred since the entry of the order of July 7, 1877.

Ordered accordingly.

Order reversed, and readjustment ordered in accordance with opinion.