This action was brought to recover damages for the conversion of forty-five shares of the capital stock of the Omnibus Railroad Company. The cause was tried by the Court, and judgment passed for plaintiff. Defendant moved for a new trial, which was denied ; and this appeal is from the judgment and order denying a new trial.

The Court below rendered its decision as follows:

It is contended hy the appellant (defendant below), that, up on the findings, the judgment should.be reversed, and judgment ordered for defendant.

We have examined the findings carefully, and arc of opinion that they support the judgment. The facts found showed that the title to the stock vested in the intestate of plaintiff, and that this title never passed out of him; that plaintiff’s intestate owned the shares at his death, and they passed to the plaintiff afterwards as his administratrix, as part of his estate.

It is further contended, that the evidence is insufficient to sustain the decision; that the evidence shows that the stock was given to the defendant by plaintiff’s intestate, and that the gift was perfected by delivery. The decision of this question turned upon matters of fact, peculiarly proper for the Court below to decide. The Court found that the stock in question was never given to Donahue as urged, and we cannot disturb such finding if there is any evidence to support it. We have examined the testimony as set forth in the transcript, and find that there is evidence to support this and the other findings of fact.

Taking the view most favorable to the defendant, the evidence is conflicting as to the gift back to Donahue; and under such circumstances, the finding, according to the long-settled rule of this Court, will not be disturbed. We will add here, that the evidence as to the gift by defendant to O’Neil is ample and conclusive.

The defendant moved the Court to strike out and disallow plaintiff’s memorandum of costs and disbursements, on the «•round that it was never served on defendant, and that it was not filed within the time allowed by law. He also moved to retax the memorandum of costs, and each and every item of it, on the ground that the items of cost were excessive, unauthorized by law, and had not been necessarily incurred in the action.

This motion (for there was but one) was denied, and from the order denying it defendant appealed.

It is shown by the bill of exceptions, that, on the hearing of *231 this motion, it was made to appear that the cause was decided by the Court on the 11th day of October, 1878; that, on the same day, plaintiff’s attorney gave notice of the decision of the Court to the defendant, which notice, served on the day just mentioned, was filed in court on the same day ; that on the 21st day of October, defendant duly gave notice to plaintiff of his intention to move for a new trial.

At the time of the occurrence of the foregoing events, it was required by § 1033 of the Code of Civil Procedure, that “ the party in whose favor judgment is rendered, and who claims his costs, must deliver to the clerk, and serve upon the adverse party, within five days after the verdict or notice of the decision of the Court or referee—or, if the entry of the judgment or the verdict or decision be stayed, then before such entry is made —a memorandum of the items of his costs and necessary disbursements in the action or proceeding, which memorandum must be verified,” etc.

As we have stated, the cause was tried by the Court, and the decision was in favor of plaintiff. The defendant gave no notice of such decision to the plaintiff, but the plaintiff did give such notice to the defendant, and that on the day that such decision was made. This notice was no doubt given by plaintiff to impose on defendant the obligation of giving notice of his intention to move for a new trial under § G59 of the Code of Civil Procedure, and within the time prescribed therein, should he intend to do so. The object of the provisions of § 1033, as to the costs, was to give the successful party who claimed such costs five days after he had knowledge of the verdict or decision to file and serve his memorandum. If the successful party had knowledge of sucli decision beyond all doubt, as she did in this case, why require the defendant to serve notice of that fact on her? It clearly appears that she did have such knowledge, for she, by her attorney, served a notice of the decision on the defendant on the 11th day of October, 1878. Still, with this knowledge, plaintiff’s memorandum was not filed until the 13th day of January, 1879—more than ninety days after she had knowledge of such decision.

We arc of opinion, that the memorandum was filed too late, and that it should have been stricken out by the Court below.

*232 The judgment and order denying the motion'for a new trial are affirmed, and the order as to the memorandum of costs is reversed, and the cause remanded, with a direction to the Court below to strike out said memorandum.

Myrick, J., and Sharpstein, J., concurred.