Jones v. Gould 202 N.Y. 549

John S. Jones, Respondent, v. George J. Gould et al., Appellants.

Jonas v. Gould, 143 App. Div. 244, reversed.

(Argued April 25, 1911;

decided May 9, 1911.)

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered March 16, 1911, which reversed an order of Special Term denying a motion for a re-taxation of costs.

The following questions were certified: “1. Does the. remittitur of the Court of Appeals, reversing the judgment entered pursuant to • an order of the Special Term, as modified and affirmed by the Appellate Division which dismissed the complaint, and awarding costs to the plaintiff appellant in all courts, embrace costs awarded to the parties defendant to abide the event by another and prior and unreversed judgment of the Appellate Division, from which no appeal has been taken to the Court of Appeals? 2. Does such an award of costs authorize the taxing clerk to tax an additional allowance, awarded to the plaintiff as the prevailing party, by an order of the Trial Term, which allowance was included in and made a part of the judgment of the Trial Term in favor of the plaintiff, which judgment was subsequently reversed by the Appellate Division by a judgment of reversal, from which no appeal has been taken to the Court of Appeals? 3. Does such an award of costs relate exclusively to costs upon the motion at Special Term for judgment dismissing the complaint, and the costs in subsequent proceedings consequent thereon in the Appellate Division and the Court o£ Appeals? ”

F. C. Nicodemus, Jr., Lawrence Greer and Appleton D. Palmer for appellants.

Charles Haldane and David McClure for respondent.