Carvey v. Rider

2 Cow. 617 | N.Y. Sup. Ct. | 1824

Curia, per Sutherland, J.

On granting a new trial, the Court exercise a sound discretion in relation to thejcosts of the trial which has already been had. Where the verdict is set aside for the misdirection or error of the Judge, or as being against law or evidence, the costs of the former trial are directed to abide the event of the suit; upon the principle, that the error which occasions the setting aside* of the verdict, being imputable to neither party, and the case being still undecided upon its merits, there is no ground upon which the costs should be put upon the one party, rathe than the other.

The construction which the Court of King’s Bench have put upon the terms, “ that the costs shall abide the event of the suit? is this ; that if the same party succeeds again on a second trial, he shall have the costs of both trials; but if the verdict be different on the second trial from what it was on the first, the party then succeeding, shall only have the cost of this trial. (Howarth v. Samuel, 1 B. & A. 566. Austen v. Gibbs, 8 T. R. 619.) The rule has been differently construed here. It has been understood according to the plain and natural import of its terms; and we believe the general understanding of the profession has been, that the party who finally succeeds, is entitled to his costs upon all the previous trials, (whether he failed or succeeded in them,) if those costs were directed to abide the event of the suit. It is of no importance which way this rule is understood ; but only that it should be settled. Whenever the costs of a former trial are directed to abide the event of the suit, the finally successful party is entitled to the costs of both trials.

Rule accordingly.^(a)

(a) Vid. Jackson v. Hallum, 1 Chit. Rep. 19.