THIRD DEPARTMENT, DECEMBER TERM, 1874. BOCKES, P. J. : The question in this case, is, whether interest became due on the bond and mortgage on the 1st day of April, 1872. Those instruments bore date June 28th, 29th, 1871, and were conditioned for the payment of $500, on the 1st day of April, 1873, "with interest annually on the first day of April in each year." In construing this condition, effect must be given to the intention of the parties; and that intention must be determined from the language employed by them to express their purpose. Also, the condition must be so construed as to give efficacy to every part of it, if possible. It may be well, first, to see what was intended by the parties, as to which there can be no possible controversy: (1) The entire principal of $500 was to be paid by one payment on the 1st day of April, 1873; (2), it was payable with interest that is, with interest from the date of the bond; and (3), the interest was to become due on the first day of April. Thus far there can be no question. The language of the condition is explicit on these three points. Now, it was further provided that the interest should become payable "annually, on the first day of April, in each year." The learned referee read the condition as if these words had been omitted; that is, as if it had simply provided for the payment, as therein expressed," of the sum of $500, on the 1st day of April, a. D. 1873, with interest;" omitting the next following words above given. I am not satisfied with this reading of the condition. I think the parties had some meaning which they intended to express by those words. If so, we must determine such meaning and give it effect. Now, the words, "with interest annually, on the first day of April in each year," carries the idea, as I think, that interest was to be paid every year on the first day of April. One of the definitions given by Worcester to the word "annually," is, every year. Under this signification of the word, the meaning is plain. The interest was payable on the first day of April in every year. That the parties so intended is apparent from the subsequent words, "on the first day of April in each year." Such is the language of the condition. Why add the words "in each year," after April, unless it was intended that the interest should be paid the next following April. More than one April was referred to when payment was to be made. It was to be made April first in each year; that is, * THIRD DEPARTMENT, DECEMBER TERM, 1874. each April between the date of the bond and the day on which the entire debt was to be satisfied. It would be an absurdity to hold that provision was made and intended for the payment of interest after the period when the entire debt was to be paid. So, by April in each year, the two Aprils which would occur while the debt remained unpaid, must have been intended. This case is made to depend, for its fair and just construction, on its own peculiarities of language. No other can be found, probably, precisely like it, which has received consideration by the court. In French v. Kennedy the question was, whether interest was payable at the time fixed for payment, on the entire debt, or on the several installments as they became due. In Fake v. Eddy's Ex., † the question was as to the time interest commenced. It was determined that it did not commence at the date of the bond, giving due effect to certain words there employed; and interest was allowed from May first, subsequent to its date, which was in that case held to be the time for the commencement of the interest, according to the intention of the parties. In Fellows v. Harrington + the question was, also, as to when interest commenced. That being determined, the construction of the condition was plain. In the case at bar, interest commenced, unquestionably, at the date of the bond; and the true reading of the condition, as I think, is that the interest was payable" on the first day of April in each year;" that is, on each first day of April, occurring during the time payment of the principal was postponed. I prefer this construction because in consonance, as I believe, with the intention of the parties, rather than that adopted by the referee, which, in effect, renders very significant words meaningless. If this conclusion be sound, the judgment appealed from must be reversed. Present-BOCKES, P. J., LANDON and COUNTRYMAN, JJ. Judgment reversed and new trial ordered, costs to abide the event; and reference discharged. *7 Barb., 452. +15 Wend., 76. 3 Barb. Ch., 652. HUN-VOL. III. 32 THIRD DEPARTMENT, DECEMBER TERM, 1874. MARY MCLAUGHLIN, RESPONDENT, v. NICHOLAS SMITH AND ANOTHER, APPELLANTS. Code, sec. 30, sub. 13- Transfer of case from County Court to Supreme Court — Costs. This action, which originated in Justice's Court, was certified to the Supreme Court by the county judge, in pursuance of section 30, subdivision 13, of the Code. Upon the trial the plaintiff was nonsuited; subsequently, on a motion made on a case and exceptions, the justice before whom the trial was had, set aside the nonsuit and granted a new trial, costs to abide the event. Upon appeal to the General Term this order was reversed, with costs. Upon an appeal from an order affirming a taxation of costs by the clerk, held (1), that, as the first appeal to the General Term was, in effect, an appeal from an order of the County Court, it was to be considered as a motion, and the defendant was only entitled to ten dollars costs thereon; (2), that the motion for a new trial was to be considered as though it had been made in the County Court, and that defendant was only entitled to ten dollars costs on the denial thereof. Proper form of an order reversing an order of the court below granting a new trial, stated. APPEAL from an order made at the Special Term, denying a motion for a retaxation of costs. The action originated in Justice's Court, where the plaintiff demanded and recovered judgment for $100 damages, besides costs. The defendants appealed to the County Court, but not on questions of law only; therefore the action was in that court for retrial. Thereupon, the county judge, being disqualified, certified the case to the Supreme Court, pursuant to subdivision 13 of section 30, of the Code of Procedure. The action came to trial at the circuit, Mr. Justice J. POTTER presiding, when the plaintiff was nonsuited, and judgment of dismissal of the complaint, with costs against the plaintiff, was entered. Thereupon, the plaintiff made a case with exceptions, and moved thereon, before Mr. Justice POTTER, at Special Term, for a new trial, which motion was granted; the nonsuit was set aside, and a new trial was ordered, with costs to abide the event. From this order the defendant appealed to the General Term of this court, which reversed the order made at Special Term, with costs. The defendants then made out and presented a bill of costs for adjustment, claiming costs the same as if the case had THIRD DEPARTMENT, DECEMBER TERM, 1874. originated in this court; but the county clerk allowed only such costs as the party would have been entitled to, in case the motion for a new trial on the case and exceptions had been made in and decided by the County Court. On a motion at Special Term, in the nature of an appeal, the action of the clerk in refusing to adjust the costs as claimed by the defendants was sustained, and the motion for readjustment was denied. J. M. Carroll, for the appellants. John Stewart, for the respondent. BOCKES, P. J.: * The proceedings taken in this court, down to the appeal from the order setting aside the nonsuit and granting a new trial, were such as might have been taken in the County Court, in case the county judge had not certified the action to this court. A motion for a new trial, on a case and exceptions, may be made in the County Court, and it may be made before or after judgment has been entered. The costs allowed on a motion for a new trial in the County Court, on a case and exceptions, are specified in section 371, and are comprised in one item of ten dollars for the argument of the motion. Had this action remained in the County Court, and the motion for a new trial been made in that court, it is quite obvious that the only allowance for costs of the motion to the prevailing party, would have been the item of ten dollars allowed by section 371 for the argument, unless, indeed, in and by the order itself, ordinary motion costs had been expressly awarded. Let us pause here and inquire whether any other costs could be allowed to the prevailing party, in case the motion had been made in this court, by reason of the action being certified here by the county judge, pursuant to section 30. This inquiry has been answered by several decisions. These cases hold that notwithstanding the proceedings and decision are in the Supreme Court, under the certificate of incapacity of the county judge to act, yet costs must be * Code, section 30, subdivision 13; section 366, subdivisions 5 and 6. + Subdivision 6, supra. 4 How., 314; 8 id., 305; 16 id., 327; id., 538, 541; 40 id., 40, 43. THIRD DEPARTMENT, DECEMBER TERM, 1874. * allowed and taxed at the same rate as if the case had been disposed of in the County Court. In Humiston v. Ballard, it is said, per POTTER, J., that in certifying an action in the County Court to the Supreme Court, for the reason that the county judge is incapable of trying it, though for the purpose of trial the jurisdiction is vested in the Supreme Court, yet the judge at the circuit is but the substitute for the county judge, and the proceedings therein are to be the same as might have been had in the County Court if such cause had remained therein. We are bound to respect these decisions, which have been acquiesced in and accepted as sound ever since the Code was adopted. Therefore, down to the time when the order granting a new trial was made by Justice POTTER, the case, for all purposes as to the allowance of costs, was to be considered the same as if it had remained in the County Court, and the order on the motion for a new trial had been made in that court. Our attention is called by the appellants' counsel to the clause in section 371, which declares that the fees and costs specified therein, and no other, shall be allowed on appeal to the party entitled to costs as therein provided, "when the new trial is in the County Court;" and it is urged that it follows, by implication at least, that when the trial is not in County Court, but is in the Supreme Court, costs of the latter court should be allowed. But, according to the decisions above cited, the appeal must be recognized as an appeal to the County Court, and that the cause is tried in the Supreme Court on the appeal to the County Court, by virtue of the certificate of the county judge. So, it is held that the case is to be treated in all the proceedings as if the cause had remained in the County Court. It must be remembered, too, that when the clause referred to was incorporated into section 371, provision was made for the allowance of costs when new trials could be had on appeals in the County Court; and this doubtless led to the employment of those words. It was no more than saying that the following costs, and no other, shall be allowed to the party entitled thereto, when a new trial is had pursuant to the authority there given. Especially should this construction be given, in consideration of the fact that it was then the settled rule, that all proceedings in the Supreme * 40 How., 43. |