The plaintiff in this action recovered a verdict.at the Broome circuit, against the defendants, for about $3,300, and a judgment was entered thereon. A motion was made before the justice who held the circuit for a new trial upon a case and exceptions, under section 1002 of the Code of Civil Procedure. The judgment was set aside at the special term, and a new trial was granted, with costs to the defendants to abide the event. Ho appeal was taken from the order granting a new trial, or from the judge’s determination of the question of costs upon that motion. A retrial was had at the circuit, and the plaintiff recovered a verdict of $400. Upon taxation of the costs by the plaintiff before - the clerk of Broome county, the costs of the motion for a new trial —an item of $60—was allowed by the clerk, against the objection of the defendants. It is claimed on the part of the plaintiff that, having succeeded finally in the action, he is entitled to costs, in all stages of the action, as of course, under sections 3228 and 3251 of the Code of Civil Procedure. The defendants claim that, from the peculiar phraseology of the order granting a new trial to them, the plaintiff is not entitled to tax the costs of the special term in his favor, and this is the only question for discussion upon this motion.
“Where a motion is made on a. case, the costs are in the discretion of the court. The costs upon such a motion are fixed by section 3251 of the Code. Where the motion is made upon the minutes, the costs are also in the discretion of the court, and, if allowed, are only ten dollars.”
In Abbott’s Annual Digest for 1887, at page 92, (paragraph 37,) the following language is used:
“Where the defendant is defeated at the trial, and succeeds upon appeal in having the judgment reversed, with costs ‘to the appellant’ to abide the event, and the plaintiff succeeds upon the new trial, he cannot tax in his favor the costs upon the appeal;” citing the case of Bannerman v. Quackenbush, 2 City Ct. R. 172.
From an examination of this authority, reported elsewhere, I do not find that the "note is sustained by the case as digested. But see Trust Co. v. Whiton, 17 Hun, 593; Howell v. Van Siclen, 4 Abb. N. C. 1, and note, affirming 8 Hun, 524. If I am right in my conclusion that the costs on a motion for a new trial are in the discretion of the court, then there is no difference, in the principle to be applied, whether the action is one in equity or at law. Copper Co. v. Dimmock, 29 Hun, 299. Then the cases of Durant v. Abendroth, 48 Hun, 16, 1 N. Y. Supp. 538, and of House v. Lockwood, 48 Hun, 550, 1 N. Y. Supp. 540, may be used to sustain the contention of the defendants, and the case of Thomas v. Evans, 50 Hun, 442, 3 N. Y. Supp. 297, would be directly in point; as sustaining the discretionary power of the justice who granted the new trial.
Secondly, the rule contended for by the defendants ought to prevail as the law in cases of this character, and particularly in the case at bar. The verdict of the jury, concededly wrong, was set aside by the justice who held the circuit; and without" any appeal from his order, which gave costs to the defendants to abide the event of the action, a new trial- is had at the circuit, and a jury give but a small portion of the original damages.' ' If the