Flewellin v. Lent

Jenks, J.: The landlord appealed to the County Court from a final order in summary proceedings to recover possession of demised premises (entered upon the verdict) of the justice of the peace before whom and a jury the proceeding was heard, awarding the tenant the possession of the premises, with costs. The County Court reversed the final order, with costs. Thereafter a motion was made to modify the order of the County Court, and the court did so by adding this provision after the direction therein for a reversal: “And all parties consenting thereto, it is further ordered that the proceeding be tried before Stuart Baker, a Justice of the Peace of the Town of Ossining, said County, * * * as if the said proceeding were begun de novo, or from the beginning. It is further ordered that the judgment entered herein on the 23rd day of November is not affected hereby.” The judgment thus referred to is one of reversal awarding fifty-three dollars and forty-two cents costs of the appeal. The tenant appeals to this court from the judgment of November twenty-third, reversing the judgment and awarding [243] costs, and from the order directing that the action be tried before the said justice of the peace. On the question of costs, section 3066 of the Code of Civil Procedure reads as follows: “ Upon an appeal provided for in this article, the award of costs is regulated as follows: 1. If the appeal is dismissed because neither party brings it to a hearing as prescribed in this article, costs shall not be awarded to either party. 2. If the judgment is reversed for an error in fact, not affecting the merits; or if a new trial is directed, before the same or another justice, as prescribed in this article, the costs of the appeal are in the discretion of the appellate court.” As such costs are in the discretion of the County Court we have no authority to review its award. Monroe v. White (25 App. Div. 292) is a decision in point, although the 1st and not the 2d clause of subdivision 2 was up in that case. It is evident that the judgment of reversal is modified by the order which awards a new trial, so that the final disposition of the appeal by the County Court is a reversal and a new trial. As the County Court could have ordered an absolute reversal its final action must be regarded by way of favor to the tenant. The record recites that “ both parties,” and, therefore, the tenant, consented to the modification. I think that he cannot stand as absolutely consenting to an order for a new trial in lieu of a reversal against him, and yet be heard to appeal from the judgment of reversal which was thus modified to his advantage by favor, and upon his consent. (See Bolles v. Cantor, 6 App. Div. 365 ; Dawson v. Parsons, 74 Hun, 221, and cases cited; Sun Printing & Pub. Assn. v. Abbey Salt Co., 62 App. Div. 54.) The judgment and order should be affirmed, with costs. All concurred. Judgment of the County Court of Westchester county affirmed, with costs.