¶1The action was tried and resulted in a judgment in-favor of the plaintiffs and upon appeal therefrom that judgment was reversed and a new .trial ordered,, “with costs to the appellant to abide the event.”
¶2A new trial was had and again resulted in favor of the plaintiffs. The only question presented for our determination is one relating to the costs awarded by the decision of the General Term upon the appeal from the judgment on the first trial.
¶3The plaintiffs contend that having succeeded in the action they are entitled to tax the .costs of the first trial and insist that the “ costs to the appellant to abide the event,” upon the reversal of the judgment on the first trial, relate to the costs of the.appeal only. '
¶4It was so held in Howell v. Van Siclen, 8 Hun, 524; affirmed in the Court of Appeals, 70 N. Y. 595, and we would follow the decision in that case were it not for the fact that the Court of Common Pleas at General Term (our appellate tribunal), in Starr *429Cash Car Co. v. Reinhardt, 6 Misc. Rep. 365; 26 N. Y. Supp. 746, have laid down a different rule.
¶5It was there held that an order reversing a judgment and directing a new trial, “ with costs to the appellant to abide the event,” included the costs in the trial court as well as the costs upon appeal, and where the respondent prevails on the new trial, the costs mentioned in the order of reversal cannot be taxed.
¶6We are compelled to follow the decision of our appellate court, and upon authority of the case cited the. order appealed from should be affirmed, with costs.
¶7Van Wyck, Ch. J., concurs.
¶8Order affirmed, with costs.