Greenberg v. Strauss

Order directing taxation of costs, and judgment entered "thereon, affirmed, with ten dollars costs and disbursements. Plaintiff was entitled to tax costs of appeal granted to “ abide the evqut,” notwithstanding the verdict itself on the retrial was insufficient in amount to carry trial costs. (Gordon v. Krellman, 217 App. Div. 477; Selden v. Block, 90 Misc. 579.) We are of opinion that there was no waiver by plaintiff of her right to tax the costs of appeal. The question involved in Whitney v. Townsend (7 Hun, 233; 67 N. Y. 40) was whether the court could set aside a judgment to enable a party to appeal where the time to" appeal had expired; and the ruling of the Court of Appeals was that the order was not appeal-able. What was there said with regard to a waiver had relation solely to the regu arity of the entry of the judgment that had been entered, and did not involve 737 the present question where the plaintiff’s right to tax the costs of the appeal is not denied had the taxation preceded the satisfaction of the judgment entered upon the verdict. We do not regard the satisfaction of the judgment as having deprived plaintiff of the right to recover the costs. Kelly, P. J., Manning, Young, Kapper and Hagarty, JJ., concur.