Slocum v. Lansing , 3 Denio 259 ( 1846 )

By the Court, Bronson, Ch., J

As the defendant was required it ,»sts, the granting uf the new trial must have been considered i £T??~ of favor rather than of strict right; and the defendant cannot be entitled to t le costs of his proceedings to obtain the favor.^(a)

Motion granted.

(a) So where a plaintiff pays costs of a circuit for not proceeding to trial pursuant to notice, and afterwards recovers in the suit, he cannot tax his own costs of that circuit. (Linacre v. Lush, 3 Wend. 305.) But where a new trial is granted at the instance of the plaintiff, the costs to abide the result, and the defendant recovers, he is entitled to his costs of opposing the motion for a new trial. (Coon v. Thurman, 2 Hill, 357.)