Marx v. McCloud

This is an appeal from an order of the county judge of Queens: county, striking out the costs of the plaintiff on appeal to the general term off the supreme court, and from that part of the order affirming the retaxation off the defendant’s costs at $127.28. The judgment of the county court off Queens county, rendered in this action originally, was reversed on appeal to-the general term of the supreme court, and a new trial was granted, with costs to the appellant, to abide the event; and thereafter a new trial was had, which resulted in a verdict for the defendant, so that the appellant was not entitled to the costs of the appeal to the general term of the supreme court, because he did not succeed finally in the action, and such costs were properly disallowed. That disposes of this appeal. Had the plaintiff succeeded on the new trial, he would then have been entitled to the costs of the appeal, buttha *75event of both trials having been unfavorable to him, and favorable to the defendant, he can recover no costs of the appeal, such costs being in terms to the appellant, to abide the event. The action of the clerk in refusing to tax the costs of the general term in favor of the plaintiff was proper, and, the term fees having been striken out by consent of the defendant, the order seems to be proper, and should be affirmed, with $10 costs and disbursements.