James Shewan & Sons, Inc. v. Union Sulphur Co.

Faber, J. Defendant’s motion for retaxation of costs denied, with ten dollars costs. The judgment for $15,360.93 was reversed by the Appellate Division because it included interest on the [861] amount of verdict, which had not been included by the jury, but added by the court. The reversal was “ with costs to appellant to abide the event.” On the second trial interest was included by the jury and the resultant judgment was $16,013.58. The effect of the quoted words was to give the costs of the appeal to the appellant depending upon the event of the second trial. (Howell v. Van Sicklen, 8 Hun, 524; affd., 70 N. Y. 595.) The second trial resulting in the recovery of a larger judgment because of the inclusion of interest as part of the damages (Walrath v. Redfield, 18 N. Y. 457; Parrott v. Knickerbocker Ice Co., 46 id. 361), the event was that plaintiff was the prevailing party and entitled to costs of both trials. (Belt v. American Central Ins. Co., 33 App. Div. 239.)