The opinion delivered at special term was as follows: GILDERSLEEVE, J. The defendant was allowed to amend the answer on "payment of the taxable costs to date." These costs were duly taxed and paid, and then defendant served the amended answer. The case subsequently came on for trial, and a verdict was rendered in favor of plaintiff. Upon the taxation of costs consequent upon this verdict, the items that had previously been taxed and paid on the service of the amended answer were stricken out as having already been paid. The plaintiff now moves for a retaxation, to include those costs. Had the court, upon granting the motion for leave to serve the amended answer, imposed, as a compensation to the plaintiff, the payment of a sum of money equivalent to the taxable costs to date, to be ascertained by the clerk, this motion might well be granted (see Schmidt v. Mackie, 9 Week. Dig. 228), as in that case there would not have been a double taxation of the same costs. In the TAXATION OF COSTS PREVIOUSLY PAID AS TERMS,-continued. ing a pleading, such costs cannot be taxed by him in case of his ultimate success in the action. Seneca Nation of Indians v. Hawley, 32 Hun, 288: Skinner v. White, 69 Hun, 127; 23 Supp. 384. Woolsey v. Trustees of Village of Ellenville 84 Hun. 234; 65 St. Rep. 746; 32 Supp. 546. Likewise, where costs are paid by a party as terms for the granting of a new trial, he cannot tax such costs, on his recovery of judgment upon the second trial. Provost v. Farrell, 13 Hun, 303. Slocum v. Lansing, 3 Denio, 259. The foregoing cases were decided on the theory that the order granting the favor on payment of costs constituted an adjudication that the costs mentioned therein belonged to the party to whom they were directed to be paid, and after payment, they could not be taxed again by either party. In the cases upon the subject decided by the courts in New York City, however, the opposite view has been taken, and it is held that the party fi nally successful may tax the same items of costs previously paid by him as terins for the granting of a favor. Havenicyer v. Havemeyer, 48 Super. 104. Donovan v. Board of Education, etc., 1 Civ. Pro. 311. case at bar, as we have seen, the defendant was required to pay "the taxable costs to date." Where a party to an action is permitted to amend his pleading upon the payment of costs, an order to that effect is an adjudication that the items covered thereby belong to the party adverse to the one so amending, and such costs cannot again be taxed by either party to the action. See Woolsey v. Trustees of Village of Elienville, 84 Hun, 234; 65 St. Rep. 746; 32 Supp. 546; also, Seymour v. Ashenden, 13 Civ. Pro. 255; Schmidt v. Mackie, supra; Skinner v. White, 69 Hun, 127; 52 St. Rep. 736; 23 Supp. 384. The motion for a retaxation is denied, but, under the circumstances, without costs. Argued before VAN BRUNT, P. J., and McLAUGHLIN, PATTERSON, O'BRIEN, and INGRAHAM, JJ. S. P. Cahill, for appellant. Theodore Connoly, for respondent. TAXATION OF COSTS PREVIOUSLY PAID AS TERMS, -continued Thus where the defendant amended his answer pursuant to an order permitting the same on "payment of costs of the action to the present time, not including disbursements," the payment of such costs does not prevent him, upon his final success, from taxing such items as part of his costs. Havemeyer v. Havemeyer. 48 Super. 104. So, costs paid by the plaintiff as a condition of being allowed to amend his complaint before trial, may be taxed by him, if he afterwards succeed in obtaining judgment. Dovale v. Ackerman, 24 Abb. N. C. 214; 11 Supp. 5. The reasoning by which the conclusion is reached that a party finally successful, who has paid costs as terms, is entitled to recover them, is well stated in Havemeyer v. Havemeyer, one of the cases last cited, where it is said: "The order having been made during the pendency of the issues and in the exercise of the discretion of the court, and in respect to a matter of pleading merely, it contemplated not a final and complete disposition of all costs that had accrued up to that time as such, but a compensation to the plaintiffs for the amendment, to be measured by the taxable costs to which they would have been entitled in case then and there they had succeeded." INGRAHAM, J. This action being at issue, the defendant made an application for leave to amend its answer, which seems to have been granted "on payment of taxable costs to date." Such costs were taxed at the sum of $85, and were paid by the defendant to the plaintiff, and the amended answer served. Subsequently the action came on for trial, and the plaintiff recovered a verdict. The plaintiff then sought to tax all the costs in the action, including the costs which had been before taxed and paid by the defendant as a condition of being allowed to serve an amended answer. The clerk, upon the taxation, disallowed the items of costs and disbursements which had been paid by the defendant as a condition of such amendment, and upon appeal to the special term such taxation was affirmed. We think, under the form of the order allowing the amendment, the taxation of the clerk was right. At the time the motion for leave to amend was made, certain costs had accrued, to which the plaintiff, in the event of her succeeding upon the final disposition of the action, would be entitled. There were the costs before notice of trial, costs after notice of trial, and term fees, with the disburse TAXATION OF COSTS PREVIOUSLY PAID AS TERMS,-continued. b. When paid by party finally unsuccessful. Costs paid by a party as terms for the granting of a favor cannot again be taxed by his adversary, upon the recovery of judgment by the latter. Andrews v. Cross, 17 Abb. N. C. 92. Schmidt v. Mackie, 9 Week. Dig. 228. Seymour v. Ashenden, 13 Civ. Pro. 255. Marx v. Gross, 2 Misc. 500; 51 St. Rep. 88; 22 Supp. 393. Louis v. Empire State insurance Co. 75 Hun, 364; 56 St. Rep. 766; 27 Supp. 83; 23 Civ. Pro. 295. Thus, where the defendant paid the costs and disbursements to date for the privilege of withdrawing a juror, the plaintiff is not entitled to tax such costs upon recovering judgment. Byrne v. Brooklyn City & Newton R. R. Co. 6 Misc. 6; 58 St. Rep. 121; 26 Supp. 65. So, costs paid by the defendant for leave to withdraw a juror and amend his answer, cannot be taxed by the plaintiff upon his obtaining judgment against the defendant. Marx v. Gross, 2 Misc. 500; 51 St. Rep. 88; 22 Supp. 393. ments for serving the summons and complaint, and placing the case upon the calendar. As a condition of the amendment, the court required that the defendant should pay to the plaintiff the taxable costs that had then accrued. By the conditions imposed by the order allowing the amendment, the plaintiff became entitled to the costs, irrespective of the final result of the action; but they were the costs of the action up to that time, and were taxed and paid as such costs. The plaintiff has thus received the costs of the action that had accrued up to the date of the service of the amended answer. There was nothing in the order allowing the defendant to amend which imposed, as a condition of the amendment, that the defendant would be liable to pay such costs a second time. The effect of the order ganting the amendment was that the costs of that action which had then accrued should be paid to the plaintiff, whether she recovered in the action or not, and those costs she had received. The services for which these costs are allowed had been rendered, the plaintiff's complaint had been prepared and served, and the case had been put upon the calendar. The necessary disbursements in TAXATION OF COSTS PREVIOUSLY PAID AS TERMS,-continued. Likewise, where the defendant, upon his demurrer to the plaintiff's complaint being overruled, paid the costs to that date for being allowed to answer, the plaintiff, after succeeding in the action, cannot tax the $25 costs before notice of trial included in the items so paid. Louis v. Empire State Insurance Co. 75 Hun, 364; 56 St. Rep. 766; 27 Supp. 83; 23 Civ. Pro. 295. Such is also the case where a part of the costs to date are paid for the privilege of amending a pleading. Seymour v. Ashenden, 13 Civ. Pro. 255. The decision last referred to, which was rendered by the judge granting the order authorizing the amendment, was to some extent based upon the fact stated in the opinion, that in making the order it was not intended that the items of costs included therein should be again taxed by either party. Where the payment of a sum of money equivalent to the costs, without being designated as such, is imposed for the granting of a favor, the party receiving that sum may doubtless tax full costs in the event of his success in the action. Schmidt v. Mackie, 9 Week. Dig. 228. curred up to the time had been awarded to the plaintiff, and paid by the defendant. No reason appears why the defendant should again pay for these services. This result, we think, accords with the practice, and is sustained by authority. 2 Rumsey, Prac. p. 513, states the rule as follows: "When a favor has been granted to a party on condition of payment of costs, if the party who receives the costs finally succeeds in the action, he cannot tax them again as general costs of the action." With that statement of the rule we concur. It follows that the order appealed from must be affirmed, with $10 costs and disbursements. PATTERSON and MCLAUGHLIN, JJ., concur. O'BRIEN, J. (dissenting). Upon the termination of the action in her favor, the plaintiff was entitled, under section 3228 of the Code of Civil Procedure, to tax the full bill of costs; and, unless she had waived it, there was no discretion in the court to TAXATION OF COSTS PREVIOUSLY PAID AS TERMS,-continued. In the case last cited, however, the order allowed the defendant to amend his answer upon payment of the costs up to the time of the service of the amended answer, and the court held that payment of such costs precluded the plaintiff, who subsequently recovered judgment, from again taxing the costs so paid. But where an order was made opening the plaintiff's default upon condition of his paying the sum of $65 within twenty days, the defendant, upon his recovery of judgment, must deduct that sum in taxing his costs, if it appear that the $65 was actually made up of items of costs. Andrews v. Cross, 17 Abb. N. C. 92. In the case last cited it was held that the legal presumption was that the sum named in the order was made up of items of costs, and that it was proper to prevent evidence before the taxing officer that such was actually the case. It is by no means unanimously held that a party to whom costs have been paid as terms, cannot again tax the same, if he be finally successful in the action, as in certain cases decided by the courts in New York City, such costs have been allowed to be taxed. Cohn v. Husson, 3 How. Pr. N. S. 130. |