#### Johann Reichel, Pl’ff, *v.*The New York Central and Hudson River Railroad Company, Def't.

*(Superior Court of Buffalo, Special Term,*

*Filed February, 1890.)*

Costs—Appeal.

A motion for a new trial on the exceptions was heard at general term at the same time with an appeal from an order denying motion for a new trial on the minutes. The order was affirmed, the motion denied, and judgment ordered on the verdict with costs. *Seld,*that the action being one for a personal injury, plaintiff was entitled to costs of the appeal, as well as those of the motion at general term, and that the fact that both were argued together did not deprive him of such right.

Motion for retaxation of costs.

*Eugene V.*Chamberlain, for pl’ff; *James F.*Cluck, for def’t.

Beckwith, Ch. J.

Motion for a new taxation of costs. This was an action for damages. The jury rendered a verdict for the plaintiff. On motion of defendant’s counsel, judgment was stayed and the exceptions directed to be heard at the general term in the first instance. The defendant then made a motion on the minutes of the court for a new trial, which, after due deliberation, was denied. The defendant appealed from the order denying a new trial. The case, exceptions and orders were printed in the same book, and the motion for a new trial and the appeal from the order refusing a new trial were argued together. The general term affirmed the order of the trial judge denying the motion for a new trial, and denied also the motion for a new trial made on the ex•ceptions, and ordered judgment on the verdict, with costs.

On the taxation of costs the clerk allowed the costs, Code, § 3251, subd. 4, for proceedings before argument, twenty dollars, and for argument, forty dollars, on the motion for a new trial made in the first instance at the general term on the exceptions; but the clerk refused to allow or tax any sums for the appeal from the order denying the motion for a new trial made on the minutes. By this motion the plaintiff appeals from the decision of the clerk and asks that the court direct a new taxation allowing the plaintiff the costs of the appeal from the order denying the motion on the minutes according to subd. 4 of § 3251 of the Code; that is to say, “before argument, twenty dollars,” and “for argument, forty dollars.”

There is no motion made to correct the action of the clerk in allowing costs of the motion at general term on the exceptions.

The defendant claims that but one bill of costs should be allowed, because the appeal from the order and the motion on the exceptions were argued at one and the same time before the general term.

This being an action to recover pecuniary damages for a personal injury, the plaintiff, upon final judgment, became “ entitled to costs.” Code, § 3228. What costs, and what rate of costs, Were not in the discretion of the court Section 3239 of the Code provides that where the decision upon the appeal from such an order refuses a new trial, the respondent is entitled, of course, to *844the costs of the appeal. Section 3251, subcl. 4, fixes the amounts to which the party is entitled at twenty dollars before argument, and forty dollars for argument. '

These sums the clerk should allow and tax for the recovery by the plaintiff’s judgment. The defendant, for its own purposes, caused the motion on the weight of evidence to be considered separately, instead of allowing judgment and appealing therefrom, according to subd. 2 of § 3239, which subdivision was provided expressly for the benefit of parties situated as was the defendant. Code, §§ 1316, 3239.

The Code defines the costs to which the respondent in the appeal, and the plaintiff in the action, are entitled, and I cannot find authority for the exercise of any discretion by the court.

Counsel fail to' call my attention to any provision of the Code that changes or takes away the statutory allowances for costs of the appeal and the motion respectively, and the fact that the general term permitted them to be brought on for argument at the same time does not seem -to affect the right to costs. It is, therefore, ordered that the clerk tax anew the sums specified as allowable to the plaintiff for the costs of the appeal from the order.