20 N.Y.S. 734 | N.Y. Sup. Ct. | 1892
The facts necessary to present the question urged on this appeal have been referred to in the opinion in Bowen v. Sweeney, 20 N. Y. Supp. 733 (herewith handed down.) This appeal is from so.much of the order of May 2, 1893, as reads as follows: “ Save and except as to the general term disbursements, which should, on re-taxation, be disallowed by the clerk. ” It is insisted with respect to those disbursements—as it was insisted in regard to the costs—that when the general term ordered a new trial; with costs to appellant to abide the event of the action, it ordered that the appellant should only become entitled to those costs, and to the disbursements which formed a part of them, when and if the defendant should finally succeed in the action. The error in this reasoning we have endeavored to point out in the former appeal, and it will be seen that we would agree with the respondent if it could be held that the order of the general term in any way controlled the right of the judge granting the amendment to impose such terms as hetbought proper and just. It remains forusonly to construe his order, which stands unappealed from and. unmodified. The plaintiff was asking a favor of the court, which was granted on certain conditions, namely, that the costs and disbursements should be taxed by the clerk. As to what costs and disbursements were intended, we have already pointed out. We think, therefore, that
