Ireland v. Harlam ( 1904 )

FREEDMAN, P. J.

The record is quite incomplete and unsatisfactory, but it sufficiently appears that defendant’s motion for a new trial was made upon a case and exceptions duly made and settled, and the order granting the motion so recites. The case is thus brought within the decision of Atkinson v. Truesdell (Super. N. Y.) 7 N. Y. Supp. 801; and, upon defendant’s final success in the action, the costs allowed for malting and serving a case, before argument and for argument, were properly taxable under section 3351 of the Code. No different result is called for by reason of the fact that upon the said motion the defendant also obtained leave to file a supplemental and amended answer, and that, as a condition for granting the motion, he was required to pay to the plaintiff the costs and disbursements of the action as taxed in the judgment roll which he did pay.

The order should be affirmed, with costs and disbursements. All concur.