The decision at the general term was in favor of the plaintiff. It was held that the judgment appealed &om was erroneous, and could not stand. The order of the court accordingly was, that it should be reversed. But the court were also of opinion that though the judgment, as it had been perfected, was erroneous, yet the defendant was entitled to recover a judgment for a part of the demand. To save him the expense and inconvenience of entering up a new judgment, it was made a part of the order that notwithstanding the decision that the judgment should be reversed, it might yet stand as a valid judgment, if the defendant, by stipulation, would give the plaintiff the benefit of the decision in his favor. He was accordingly required to agree, that he would only collect upon the judgment, as the condition upon which it should be allowed to stand, the damages mentioned in the judgment, and the costs. A fair construction of such an agreement would, I think, exclude the costs of the appeal. It is evident that the court intended the defendant, if he would take the benefit of the condition in the rule, should waive his right to any other costs than those embraced in the judgment.
Upon such a state of facts, it would be more difficult to show that the plaintiff himself was not entitled to costs against the defendant. He had succeeded upon the appeal. Judgment of reversal had been pronounced. He might well urge that the fruits of his victory should be awarded to him. It was matter of favor to the defendant, not of right, that any part of Ms judgment should be allowed to stand. It is certainly enough for the defendant, that by allowing him this favor he escapes the costs of a reversal, with which he must otherwise have been charged. The injustice of allowing him to recover of the plaintiff the costs of the appeal, is too palpable to be tolerated. The judgment which the defendant has entered for such costs, must be set aside. I think, too, the defendant should be charged with the costs of this motion.