§ 8107.Costs upon appeal

This section replaces CPA §§ 1489, 1490 and 1491, and so much of CPA § 1492 as related to appeals.

CPA § 1490, which related to appeals from a final judgment, was originally intended to grant costs on appeal as of right in those actions where costs of the action were as of right, and to allow appeals costs by discretion in those actions where action costs were by discretion. In 1943, however, the appeals as of right provision was amended upon the recommendation of the Judicial Council to permit the appellate court to deny costs. Laws 1943, c. 452; see introduction to this article. Thus, the former status of costs on appeal was that unless discretion was exercised to allow them in actions where the action costs were discretionary, they were denied; while unless discretion was exercised to deny them in actions where action costs were as of right, they were allowed. This confusing rule has been simplified by this section to allow costs in all cases except where they are denied in the discretion of the court. Moreover, the discretion prescribed by this section may be exercised in rare cases to tax costs against the prevailing party.

CPA § 1490(1) was misleading because its introductory phrase seemed to cover only an appeal from a judgment for the plaintiff. It seems clear, however, that that phrase, “action wherein the plaintiff is entitled to costs as of course,” should be read in the light of the phrase used in the predecessor section to mean only an action of a kind specified in CPA § 1470. See Code Civ Proc § 3238(1); cf. CPA § 1483.

CPA § 1491 provided with two exceptions, that costs on an appeal from an interlocutory judgment or an order were discretionary. It is therefore included in this section.

The exception in subd 1 of CPA § 1491 provided that where an appeal was taken from an order granting or refusing a new trial and the decision on appeal refused a new trial, the respondent was entitled, of course, to the costs of the appeal. When the order appealed was a denial of a new trial, the provision was understandable since the order was affirmed and the respondent was the prevailing party. Cf. CPA § 1490(1); see also id. § 561 (defining “respondent”). However, when the order appealed from was the granting of a new trial and the court refused a new trial, the respondent had lost and the provision then appeared to award a losing party costs of course. Although this anomaly in the Code of Civil Procedure was pointed out by the First Department in 1920, the provision was included in the civil practice act unchanged. Under the 1920 decision, however, its application was narrowed, since the court stated:

“I am of opinion that the learned justice at Special Term erroneously construed these statutory provisions. The appeal herein was not merely from an order granting a new trial, but from an order setting aside the verdict and granting a new trial; and the decision upon the appeal did not merely refuse a new trial, but it reversed the order in toto, and reinstated the verdict, and directed that judgment be entered thereon in favor of the plaintiff. The order, therefore, does not fall literally within these provisions entitling the respondent to costs as of course; and plainly it does not fall within the intent of the Legislature, for it would be unreasonable to hold that it intended that the party who was wholly defeated on the appeal should be entitled to costs of the appeal as a matter of right, while costs in all other cases, with the one exception specified in subdivision 2, whereby it is provided that on an appeal from an order refusing a new trial, and an appeal from the judgment also, neither party shall have costs of the appeal from the order, were left to the discretion of the court on the appeal. It would be difficult to decide precisely what the Legislature meant in so far as it thus provided that on the appeal from an order granting a new trial the respondent should be entitled, as of course, to costs if the decision on the appeal refuses a new trial, for to grant the defeated party costs as a matter of right is contrary to all other legislation on the subject and to the practice of the courts where costs are discretionary. . . . It would seem . . . that a very radical change was made in the provisions as enacted in . . . the Code of Civil Procedure, and there appears to be no explanation thereof in the notes of the Commissioners to Revise the Statutes, and we have been unable to find any decision shedding light thereon. Therefore, without attempting to define precisely what was meant by these provisions, or expressing an opinion as to whether they apply to the usual orders based on the minutes of the court or on the record of the trial, or relate only to other orders granting or refusing a new trial, we decide this appeal by holding that in no event is the unsuccessful party entitled to costs as matter of right under said subdivision 1 . . . unless the order falls clearly within these provisions, which the order in question does not, for, as already observed, the order of this court was not merely a decision refusing a new trial, and it was intended thereby, in the exercise of the discretion of this court, that the appellant, who wholly succeeded on the appeal, should recover costs and disbursements.” [Rothman v Thompson Bros., Inc., 193 App Div 694, 696–97, 184 NY Supp 505, 506–07 (1st Dep’t 1920).].

In view of the confusion it has caused, and the lack of necessity for a special provision for costs as of right in this area, especially since the 1943 amendment to CPA § 1490, subd 1 of CPA § 1491 has also been deleted.

Subd 2 of CPA § 1491, which provided that upon an appeal from both a judgment and an order refusing a new trial, neither party was entitled to costs for the appeal from the order, is also deleted. Since costs are discretionary, the court may control the costs to be awarded upon this kind of combined appeal as well as upon others. Moreover, since there is presumably one appeal and one argument, there seems no reason why more than one bill of costs should be awarded, even without the provision, for the situation is analogous to an action where two or more causes of action are alleged. For similar reasons, the reference to costs in the last paragraph of CPA § 562 is also deleted.

The phrase “whether or not he is entitled to costs in the action” is intended to cover the substance of CPA § 1489.

Add, L 1962, ch 308, § 1, eff Sept 1, 1963.