When-the plaintiff’s first judgment was reversed and a new trial was granted, with costs to abide the event (97 App. Div. 230), and the plaintiff succeeded upon the second trial, he was entitled to tax the costs of both trials. The learned counsel 'for the appellant argues that in effect the plaintiff thereby profits by a wrong proceeding. The point has been urged before and the force of it recognized, e. g., by Freedman, J., in Isaacs v. N. Y. Plaster Works (4 Abb. N. C. 8). But the argument for the rule is that the defendant was not entitled to the costs when, he appealed, as he had been defeated, and as a defeated party he demanded a new trial, contending that lie was not liable. . He gained the new trial, but he was again -defeated, and the plaintiff, who had not been awarded costs absolutely, became
I am of opinion, however,-that it was error to tax any term fee in the Trial Term previous to the amendment of the complaint if this was done. Eor although by the amendment of the complaint in this case the cause of action was not changed, the original issue as on the calendar before the amendment was destroyed by the amendment of the complaint. I find no other errors in the taxation prejudicial to the defendant, for although three items of disbursements of seventy-five cents, eighteen' cents and fifty cents are in excess of the proper amounts, yet the plaintiff wap entitled to tax such disbursements as of two trials and not one. The order should be modified as indicated, and as thus modfied affirmed, without costs to either party.
Hooker, Rich and Miller, JJ., concurred.
Order modified ás indicated in the opinion of Jehks, J., and as thus modified affirmed, without costs to either party. . .