Opinion
February 3, 1938.
Drew Drew, for the motion.
Charles J. Mondo [ Kenneth B. Keating of counsel], for the executor.
Michael J. Rogers, special guardian.
In this motion Drew Drew, as attorneys for the objector-appellant herein, now move, on the remittitur of the Appellate Division awarding "costs to the appellant out of the estate," for a retaxation of said costs; and also for an order restoring the $250 deposited in court in lieu of an undertaking on said appeal.
As to the latter, there is no question as to the right to an order on the director of finance of this county to refund said deposit with any interest accrued thereon, and less his legal fees, to the depositor who made the same.
As to the costs, the moving party's contention that such a formula as that quoted above from the remittitur carries costs, not only on the appeal but a so such as might have been awarded in the trial court prior to the appeal as if the appellant had succeeded there also, is not supported by the authorities. (2 Jessup-Redfield p. 2231; Brocia v. Romeo Co., Inc., 241 N.Y. 505.) The jurisdiction of the trial court to award costs of the trial ended upon the entry of its decree in the circumstances of this case, notwithstanding the reversal makes it possible now to argue retrospectively that the estate has been benefited.
There must be deducted from the bill of costs set out in the moving papers the first three items, to wit, $70, $50 and $250, relating to the trial in this court prior to the appeal. The remaining five items, being those on appeal, are allowed, totaling $100.
Among the disbursements there set out also is $32.85 paid to the stenographer to transcribe the minutes of the trial, solely for appeal purposes, which is a proper disbursement. ( Ridabock v. Metropolitan El. R. Co., 8 A.D. 209; Rules Civ. Prac. rule 230, formerly rule 32.) The five dollars paid for a translation, and one dollar and thirty-five cents paid for a photostat are not within the terms of section 1518 of the Civil Practice Act, and are not allowable. The four other items, totaling $198.34, are proper disbursements. The moving party is accordingly entitled to costs at $100 and disbursements at $198.34, making a total of $298.34.
Enter an order retaxing said bill of costs in accord with this decision.