Stephen Salerno, Plaintiff, v. New York Central Railroad Company et al., Defendants; Pacific Fruit Express Company, Third-Party Plaintiff, v. Beech-Nut Life Savers, Inc., Third-Party Defendant, 44 Misc. 2d 86

William G. Easton, J. This is a motion for an order pursuant to CPLR 5019 (subd. [a]) to amend the judgment entered by the defendant, Pacific Fruit Express Company, to strike out so much of the judgment as includes a recovery for costs. In the trial court the plaintiff had a judgment against both defendants. Upon appeal the Appellate Division (21 A D 2d 850) reversed the judgment and dismissed the complaint as against the defendant, Pacific Fruit Express Company, the Appellate Division order saying in part ‘ ‘ without costs of these appeals to any party”.

However, the Pacific Fruit Express Company in entering its judgment on the Appellate Division order included- costs as relating to the original trial. CPLR 8108 is pertinent, the last sentence of which reads as follows: “ The decision on appeal shall specify the disposition made in regard to costs ”. This is exactly what the Appellate Division did in its order by refusing to grant costs of the appeal to any party. The defendant Pacific Fruit Express Company never had any other costs awarded to it in the lower court and that situation was not changed by the Appellate Division order.

If the Appellate Division had wanted to grant costs to this defendant for services in the lower court, it could have said so but the said defendant was not a party in whose favor a judgment was entered in the lower court. Hence, without any further court order to the contrary that situation does not change. It was held in Matter of Ewald (268 App. Div. 826) that where an order of modification on prior appeal to the Appellate Division made no direction for award of costs in Surrogate’s Court, it was improper to award costs to respondents for services rendered prior to the appeal.

Any allowance or disallowance of costs by an appellate court, without anything further, means costs in that court, and generally speaking, matters remain independent of one another for purposes of costs, the costs to be awarded or denied in each proceeding according to its independent outcome, and such rule applies equally as well to costs on appeal in the absence of direction to the contrary by the appellate court. (Matter of Gautier, 12 Misc 2d. 1001.) The motion is granted, with costs on this motion.