Opinion
December Term, 1900.
L.M. Berkeley, for the appellant.
Charles C. Paulding, for the respondents.
Present — VAN BRUNT, P.J., RUMSEY, INGRAHAM and HATCH, JJ.
This is an appeal from an order denying a motion for a retaxation of the plaintiff's bill of costs. The plaintiff recovered a judgment against the defendants on a second trial of the action. On the first trial the plaintiff recovered judgment, but both parties appealed, and that judgment was reversed and a new trial ordered, "without costs." ( Sander v. New York Harlem R.R. Co., 42 App. Div. 618.) That meant, merely, without costs of the appeal. On the second trial the plaintiff, having again succeeded, was entitled to all the costs of the action, except those excluded by the decision of the Appellate Division. That rule was recognized in House v. Lockwood (48 Hun, 550). The order must be reversed, but it does not necessarily follow therefrom that every item of the bill of costs taxed on the first trial should be allowed. The order appealed from is reversed, with ten dollars costs and disbursements, the motion for a retaxation of costs is granted and the bill of costs sent back to the clerk for retaxation, with ten dollars costs to the appellant.
Order reversed, with ten dollars costs and disbursements, motion for retaxation of costs granted and bill of costs sent back to the clerk for retaxation, with ten dollars costs to appellant.