#### The Bradley Salt Co., Appellant, *v.*Henry Meinhold, et al., Respondents.

(Supreme Court, Appellate Term,

May, 1898.)

Action for costs paid on an appeal from a District Court, the judgment having. been- reversed, with' costs to abide the event — Code Civ. Pro., §§' 3047, 3060.

Costs paid by an appellant, under section 3047 of the Code of Civil Procedure, in. order to perfect an appeal from a judgment of a District Court of the City of New York cannot, upon a reversal, with costs to abide the event, of the judgment appealed from, be collected by action of the respondents to whom they have been paid by the clerk; but if the appellant ultimately succeeds in the action, it is entitled-, under section 3(360 of the Code of Civil Procedure, to tax the costs as necesr sary. disbursements on appeal.

Appeal by the plaintiff from a judgment of the District Court in the city of Hew York,' for the first judicial district, rendered in favor of the defendants, by the justice ¡thereof, without a jury.

The nature of- the action and the material facts are stated in the opinion.

J. E. Ludden, for appellant.

J. H. Denenholz, for respondents.

Giegerich, J.

The defendants heretofore recovered a judgment against the plaintiff in one of the District Courts in the city of Hew *469York, which, was reversed," with costs to the appellant to abide the event. The plaintiff, in order to perfect the appeal, paid to the clerk of the District Court the costs of the action, included in the judgment, the fee of the justice for making the return, and the' fee of the stenographer for a copy of his minutes; amounting in all to the sum of $28.15. This sum was delivered to the defendants.

The defendants having refused to pay the plaintiff the amount so received by them, the latter brought this action for its recovery. Judgment was rendered in favor of the former, with costs, from which the plaintiff has appealed.

The sole question presented by this appeal is whether the plaintiff can maintain an action for the. recovery of the money so paid to perfect the appeal, and I have been unable, after considerable research, to fin'd any adjudication bearing directly upon the question under consideration.

The cases cited by the appellant, of which Clark v. Pinney, 6 Cow. 297; Sturges v. Allis *&*Lee, 10 Wend. 355, and Haebler v. Myers, 132 N. Y. 363, are types, merely hold that an action lies to recover money paid on an *execution*issued under a judgment which is afterwards reversed.

Such is not the case here as- the sum sought to be recovered was not lost by means of an erroneous judgment. Sherwood v. Travelers’ Ins. Co., 12 Daly, 137, 139.

In the last cited case, the plaintiff recovered a judgment against the defendant in a District Court, from which an appeal was taken, and the costs and fees to perfect the appeal were paid to the clerk. The judgment was reversed, with costs, and the defendant thereafter demanded back the money so paid. In default of such return, an application was made to compel the clerk to comply with the demand, and on the argument of the motion it appeared that he had already paid the amount to the -.plaintiff’s attorney. The. clerk appealed from the order granting the 'motion, and the court, in reversing it, said, speaking through Beach, J.: *“*The appellant, if costs are awarded him on the appeal, may tax, among other items, the costs and fee paid to the justice upon talcing the appeal. Code of Civil Procedure, § 3060. The authority to- include these costs among the disbursements on appeal seems to contemplate a prior disposition of them by the justice or his clerk. The only one ■ possible is a payment to the successful party in the District Court, as they certainly do not belong to either of those officials, *470and, if to- rest on deposit, no necessity existed for such, a provision. * * * Neither can these costs fall within section 3058. They are not property lost by means of the erroneous judgment, because not taken from the party under the judgment, but paid as one of the steps needful to perfect his'.appeal.”

The rule laid down in this case was substantially approved in Kenney v. Livery Stable Keepers’ Assn., 89 Hun, 190, where.the court (p. 192) said: *“*Upon the argument it was contended that there was no way for the appellant (the present -respondent) to recover the costs so paid in casé he succeeded on his appeal, b-uti section 3060 of the Code appeals to- be applicable to such a case, and, under that provision, costs and fees paid to the justice may be included in the disbursements on appeal in, case the appellant is awarded costs.”

It seems to me that the rule may be fairly deduced from these decisions that costs paid pursuant to section; 3047 of the Code of Civil Procedure áre. not property, lost by. means of. an. erroneous judgment-,, but are such necessary disburseménts.'up'oú,the;’appeal as may be taxed by the appellant when - absolutely" awarded to him, or, if granted to abide the event, when-he'has succeeded ultimately in the action.

Eor these reasons .the judgment should be affirmed, with costs.

Beekmah, P. J., and Gildebsleeve, J., concur.

Judgment affirmed, with costs.