There was an excess of words in the undertaking construed inPost v. Doremus (60 N.Y. 371); but eliminating those, the obligation was precisely like that on which this action was brought. The circumstances of the two cases, and the stage of the action at which the prevailing party became entitled to costs, are also the same, and the decision then made must control here. The plaintiffs, therefore, were entitled to recover only such costs as could be taxed against Harris and Jones (the unsuccessful appellants) as costs of appeal to this court. The defendants' counsel also claims that an offer of judgment was made and that costs of this action should be adjusted accordingly. But that fact does not appear upon the record and cannot be considered.

The judgment of the General and Special Terms should be reversed and a new trial ordered, with costs to abide the event.

All concur.

Judgment reversed. *Page 243