Flynn v. Equitable Life Assurance Society , 25 N.Y. Sup. Ct. 212 ( 1879 )

Per Guriam:

We think it is plain, from the language of section 309 of the Code, that the successful party can recover only one extra allowance, although the case may have been tried several times. Such was the view of the learned justice, whose order is appealed from ; but he felt bound to hold otherwise on the authority of Howell v. Van Siclen (4 Abb. [N. C.], 1). Aside from the extra allowance, the successful party is entitled to his costs for all the proceedings in the case, except such as, being discretionary, have not been given to him. The plaintiff in this case, therefore, is entitled to tax the costs of both trials — the costs at the General Term and the costs at the Court of Appeals.

Nothing is said in the points presented on either side as to the item of interest on verdict; and we therefore pass that item.

The bill of costs must be modified, therefore, by striking out $257.55, being five per cent extra allowance on the first verdict; and, as thus modified, affirmed. No costs of this appeal to either party.

Present — LearNed, P. J., BoardmaN and Bocees, JJ.

Costs modified by striking out $257.55, being five per cent extra allowance on first verdict. No costs of appeal to either party.