Thomas v. Evans , 57 N.Y. Sup. Ct. 441 ( 1888 )

Pratt, J.

The case in 84 N. Y. 469, (First Nat. Bank v. Fourth Nat. Bank,) is decisive that the party which has at last prevailed is entitled to his-costs in the court of appeals. But we do not understand that case to hold, that a decision of the court of appeals reversing a judgment and ordering a. new trial, “ with costs to abide the event,” necessarily imports that the party finally prevailing must recover costs for all the proceedings in the cause. Full effect is given to the language of the appellate court by giving to the-party finally prevailing his costs in the court of appeals. We think the judge-who tried the cause at'special term had authority to give the party now prevailing costs of the first trial at special term. The cause is in equity, and-, costs are in discretion. As to the costs of the appeals to the general term. We have held the right to those costs was not conferred by the decision of the-court of appeals; they have not been awarded to the party now prevailing by the general term; and the special term judge, who must-be considered best qualified to explain his own decision, if.it be ambiguous, expressly decides that they were not conferred by him. From these views it follows that the-order appealed from must be affirmed. No costs. All concur.