U.S. Court of Appeals for the Second Circuit, 1949

Broffe v. Horton

U.S. Court of Appeals for the Second Circuit · Decided March 23, 1949

173 F.2d 565; 1949 U.S. App. LEXIS 2865 (Federal Reporter, Second Series)

Counsel

Walsh & Levine, of New York City (William F. Walsh and James Harte Lev-enson, both of New York City, of counsel), for plaintiff-respondent., Satterlee, Warfield & Stephens, of New York City (James F. Dwyer and Bennett Frankel, both of New York City, of counsel), for defendant-appellant.

Cases that cite this one

4 later published cases cite this decision.

Trans World Airlines, Inc. v. Howard R. Hughes (2d Cir. 1975)
Maryland Casualty Co. v. Jacobson (District Court, W.D. Missouri 1965)
United States v. Arthur N. Olive Co. (District Court, D. Massachusetts 1962)
Chemical Bank & Trust Co. v. Prudence-Bonds Corp. (New Corp.) (2d Cir. 1953)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion of the Court

PER CURIAM.

The rules of the Supreme Court have provided for more than a hundred years1 *that in case of reversal, costs shall be allowed “unless otherwise ordered by the court.” That is now embodied in Rule 32(3) of the rules of that court, 28 U.S. C.A.; and our own Rule 30(2) is even stronger: “costs, so far as taxable, shall be allowed as of course to the prevailing party unless the course otherwise directs.” No doubt that allows exceptions, but from the beginning in 1891 it has been the unbroken practice at least in this circuit, so far as we know, or can learn from the clerk’s office, never to allow “costs to abide the event” in- case of reversal;2 and we gather that that is the rule elsewhere.3 *566The only exception we can find is United States v. Beaty4 in which in 1847 Justice Daniel and Johnson, D. J., awarded “costs [to] abide the event,” because “it was the error of the court” which had rendered a new trial necessary.

We regard our local practice as an almost conclusive gloss upon the rule; nor can we see that it makes any difference whether the error was one of the court or not, provided it is the appellee who has induced the court to make it; for, as between him and the appellant, justice demands that he, who has been the cause of the expense, shall pay for it. It is never wise to lay down a draconic rule, and conceivably there may be situations in which the appellee has been as much the victim of the court as the appellant; but they will be exceedingly rare. At any rate, the case at bar is not one of these. It is true that the judge prepared his own findings, but there was nothing in the record to support a finding that Horton intended to give part of the shares to his wife before Broffe had committed himself to the sale.

Petition denied.

Bradstreet v. Potter, 16 Pet. 317, 10 L.Ed. 978.

Land Oberoesterreich v. Gude, 2 Cir., 93 F.2d 292; Berthold v. Burton, C.C., 169 F. 495 (Lacombe, .T.); Jennings v. Burton, C.C., 177 F. 603 (Lacombe, J.).

Bailey v. Mississippi Home Telephone Co., D.C., 254 F. 358.

Fed.Cas.No.14,555.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.