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People ex rel. Donovan v. Fire Commissioners

5 Abb. N. Cas. 144 Court N. Y. Supreme Court, First Department; Special Term and Chambers, English

Delivered by Daniels, J.

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p. 144
PEOPLE ex rel. DONOVAN v. FIRE COMMISSIONERS OF NEW YORK.
N. Y. Supreme Court, First Department; Special Term and Chambers,
October, 1878.

Headnote

Certiorari. — Costs.—Special Proceedings.
Whether costs shall be allowed or not in special proceedings is subject to the discretion of the tribunal hearing and deciding the case. If they are granted they must be at the rate allowed for similar services in civil actions.
Hence, where, upon the return to a writ of certiorari to examine proceedings removing one from office, the matter was argued and a decision rendered reversing the proceedings with costs and dis bursements, — Held, that the writ of certiorari must, for the purposes of costs, be regarded as the summons in a civil action, the return as constituting the answer and framing the issue upon which the case is heard and disposed of as an issue of law would be in a civil action, and therefore the relator was entitled to the same costs as for proceedings before and after notice of trial in civil actions, and to the same trial fee as for the trial of an issue of law.
Appeal from taxation of costs on a judgment in favor of the relator under a common law certiorari.
This was a common law writ of certiorari, requiring the Board of Eire Commissioners of the city of New York to return all the proceedings concerning the dismissal, discharge, and removal from office of James Donovan, the relator above named.
The matter was argued before Mr. Justice Doetohde, and a decision rendered July 2,1878, reversing said proceedings, with costs and disbursements.
Upon the taxation of costs, the relator sought to tax costs as of an issue of law, but the clerk only allowed $10 costs of motion and disbursements.
Prom this adjustment the relator appealed.
Douglas A. Levien, Jr., for appellant.
The ques
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tion of costs was in the discretion of the court before whom the cause was heard, and it was exercised by allowing them to the relator, who, being the prevailing party, was entitled thereto on a common law certiorari (People ex rel. Muller v. Commissioners of Schodack, 27 How. Pr. 158 ). A common law certiorari is a special proceeding, Vithin the terms and intent of the code, and costs of appeal may be awarded thereon in the appellate tribunal (Code, § 318 ; L. 1854, p. 593, c. 270; People ex rel. Van Rensselaer v. Alstyne, 3 Abb. Ct. App. Dec. 575 ; reported below in 32 Barb. 131 ; People ex rel. Spencer v. Fuller, 40 How. Pr. 35 ; 5 Wait Pr. 483, and cases cited). Section 318 of Code changes the old rule.
William C. Whitney and Thomas P. Wickes, for respondent.
This is a common law certiorari (People v. Board of Police, 39 N. Y. 506 , 512), and not, therefore, an action; hence costs as in an action are not properly taxable. A legal issue only arises in an action, never in a special proceeding. The unquestioned practice in this department has been to allow $10 costs of motion and disbursements. The decision in this matter is nothing more than that of a motion. After argument the motion was granted “ with costs.” What costs % The costs which are usual in similar cases (L. 1854, c. 270, § 3; People v. Fuller, 40 How. Pr. 35 ).

Whether costs shall not be allowed in special proceedings has been rendered subject to the discretion of the tribunal hearing and deciding the case. And that is the entire extent of the discretion allowed to be exercised upon this subject, for wherever costs are allowed, then they must be at the rate allowed for similar services in civil actions (Laws of 1854, c. 270). The act assumes that there wall be found sufficient similarity between the proceedings and the different steps ordinarily taken in civil actions to render

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the provisions made as to costs in the latter cases intelligently applicable to the proceedings in the former. That can only be done by assimilating them in substance, even though it cannot be done in name. That seems to have been the governing idea in the enactment of this law. And following that course the writ of certiorari issued in this case must, for the purposes of costs, be regarded as the summons in a civil action. It is the commencement of the proceeding. The return, when made, constitutes the answer and frames the issue, upon that the issue is heard, tried and disposed of as an issue of law would be in a civil action. That would entitle the relator to the same costs as are provided for proceedings before and after notice of trial in civil actions, and to the same fee for trial as has been fixed for the trial of an issue of law. The adjustment made in this case must accordingly be set aside, and a further adjustment directed in conformity with this construction of the law. No costs of this motion will be allowed to either party.

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