Pelgram v. Ehrenzweig

Bischoff, J.

The judgment appealed from is wholly for costs awarded to the defendant, to abide the event, upon reversal by the Appellate Term of a judgment for the plaintiff. 51 Misc. Rep. 31. The Appellate Term directed a new trial and the new trial having eventuated in a judgment for the defendant the latter caused a separate judgment to be entered in the court below for the costs of the former trial and appeal.

The return upon this appeal does not disclose the occurrence of the event upon the happening of which the defendant’s right to the costs of the former trial and appeal was made to depend. It refers, however, to the return upon an appeal taken from the judgment for the defendant upon a second trial, which judgment is in turn reversed at this term. Whether, therefore, we rely upon the return upon this appeal only, or upon both returns, regarding the one as incorporated with the other by intrinsic reference, the same result must follow, the judgment under immediate review must he reversed ; in the one instance because the defendant’s right to the costs is not apparent from any happening of the event upon which his right was made to depend, and in the other because the judgment was irregular and unauthorized. There can he but one judgment in the action; and the costs of the former trial and appeal should have been made a part of the judgment for the defendant upon the second trial, in which event the determination of the appeal from the latter judgment would have involved the defendant’s right to the costs in the judgment now also reversed.

Judgment reversed, with costs.

Gildersleeve, J., concurs.