The appeal to the Court of Appeals took up for review only the proceedings originating in the motion for judgment on the plead*247ings. But for tire fact that tire last decision of this court was made on the authority of the first (133 App. Div. 889), the Court of Appeals would not even have been informed by the record before it that there had been a trial and a judgment for the plaintiff reversed by this court. That judgment was reversed for insufficiency of the complaint and for failure of proof (123 A]ip. Div. 236), and the verdict upon which it was entered has not been reinstated. The phrase “ costs in all courts” can-only mean costs at all stages of 'the proceedings involved in the appeal. In my view, the award of costs absolutely, and not to abide event, shows a purpose to impose only the costs caused by the defendants’ motion for judgment on the pleadings, which has resulted in leaving the litigation just where it was before the motion was made.
This case is very different from Merkel v. Lazard (139 App. Div. 624). In that case the decision of the Court of Appeals ended the litigation. In spite of repeated warnings of the Court of Appeals, the defendant had given a stipulation for judgment absolute and had appealed from a judgment of reversal in a case involving a question of fact.
Strangely enough, the decision which we are required to construe is not a part of the appeal papers. It is said that a new trial was in terms ordered ; but so far as the appeal was concerned, there had never been a trial. The effect of the decision was to reverse the judgments of the Appellate Division and the Special Term and the intermediate orders involved, and to deny the motion tor judgment on the pleadings, thereby restoring the case to the situation before the motion was made. Surely the Court of Appeals could not have intended to reinstate a judgment for costs which it did not have before it, or to restore an extra allowance of which it probably had no knowledge and which there is now no verdict to support. The Court of Appeals may have refused to amend the remittitur for the reason that it was thought to be plain enough without amendment.
Clarke, J., concurred.
Order reversed, with ten dollars costs and disbursements, and motion granted, as stated in opinion, with ten dollars costs. Settle order on notice.