35 Misc. 272 | N.Y. App. Term. | 1901
This case has been tried three times. Upon the first trial a verdict in favor of the plaintiff was rendered, and upon his motion was set aside on the ground of insufficient damages. Upon the second trial a juror was withdrawn at defendants’ request to enable them to apply at Special Term for leave to amend the answer. The third trial resulted in a verdict for plaintiff for the full amount. The clerk taxed only two trial fees issues of fact. A motion for a retaxation was denied, and upon appeal to the General Term of the City Court from the order entered upon this decision, the said order was affirmed. This was error. It has been frequently held that the withdrawal of a juror in the progress of a trial did not affect the right of the successful party to the taxation of costs. Gilroy v. Badger, 28 Misc. Rep. 144; Hudson v. Erie R. R. Co., 57 App. Div. 99.
The order appealed from reversed, with costs and disbursements and retaxation ordered. '
Present: Scott, P. J., Beach and Fitzgerald, JJ.
Order reversed, with costs and retaxation ordered.
