Awarding Costs on Appeal

Article by Thomas R. Newman and Steven J. Ahmuty Jr.

Originally published in New York Law Journal

The right to recover costs in an action as well as the amount of such costs, if awarded, exists only by virtue of statutory authority.1 At common law, neither costs nor disbursements were allowed to the prevailing party in any case, the courts having no inherent power to include an award of costs in their judgment.2 In the case of appeals, the applicable statutes governing costs are CPLR §§8107, 8203, 8204 and, for taxable disbursements which a party awarded costs may recover, §8301.

CPLR §8107, "Costs upon appeal," provides: "The party in whose favor an appeal is decided in whole or in part is entitled to costs upon the appeal, whether or not he is entitled to costs in the action, unless otherwise provided by statute, rule or order of the appellate court. Where a new trial is directed upon appeal, costs upon the appeal may be awarded absolutely or to abide the event." The amount of costs is fixed by §8203(a) on appeals to the appellate division ($250 unless a lesser amount is ordered) and §8204 on appeals to the court of appeals ($500 unless a lesser amount is ordered).

Statutory costs are a matter of right. They are "in the nature of incidental damages allowed to indemnify a party against the expense of successfully asserting his rights in court."3 They are "not imposed as a punishment on the party who pays them, nor given as a bonus to the party who receives them. . . . [C]osts in an action are not awarded as a gratuity or emolument for inconvenience sustained, but constitute compensation for expense ordinarily incurred in the action."4

While it was written over 100 years ago by an English judge that "there is one panacea which heals every sore in litigation, and that is costs,"5 that remark does not apply to modern day appellate litigation in New York. Rather, it must be understood in the context of the "English Rule" which awards the prevailing party its full costs, including attorney's fees.

Under the prevailing rule in New York, known as the "American Rule," "attorneys' fees are incidents of litigation and a prevailing party may not collect them from the loser unless an award is authorized by agreement between the parties, statute or court rule."6 There is a well-recognized exception, to this rule, however, "where the damages are the proximate and natural consequence of defendants' tortious act which requires plaintiff to defend or to bring an...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT