Tauton v. Groh — 9 Abb. Pr. 453

Majority

p. 453

TAUTON against GROH.

Supreme Court, First Department, First District; General Term,

November, 1870.

Headnote

Costs of Appeal.

On appeal to the court of appeals, from an order, full costs are allowed.^[2]

p. 454

This action was an equitable suit for the foreclosure of a mortgage; and it was carried to the court of appeals, on appeal from an interlocutory order allowing a third person to be substituted ‘ as a party, and the defendants to be discharged, on payment of the money into court.

The appeal was heard as a motion, in the court -

p. 455

of appeals, in March, and determined at the September term, 1869, and the order appealed from was affirmed. The proceedings are fully reported in 9 Abb. Pr. N. S., 385.

The opinion of the court made no allusion to costs. The remittitur, which the respondent procured from the court of appeals, and filed with the clerk of the supreme court, contained the words, “Order affirmed, with costs.” On March 25,1870, the respondent obtained an ex-parte order to be entered in the supreme court, and served on the appellant, declaring it to be “ adjudged that the judgment of the court of appeals be the judgment of this court.”

On April 15, the respondent presented to the court, for adjustment, a full bill of costs, as if on an appeal from a judgment and affirmance thereof; and, against the objections of the appellant’s attorney, the costs were adjusted at one hundred and eighteen dollars and fifty-three cents.

On May 4, 1870, the attorney for the appellant, on an order to show cause, applied to the special term to have the order of March 25,1870, modified or amended, by striking out the word “judgment” and “ adjudged,” and inserting the word “order;” and also to have the adjustment of'the bill of costs vacated, or set aside, or corrected. This motion was denied with five dollars costs. The following is the opinion of the court at special term, upon which an order was entered :

Cardozo, J. The remittitur from the court of appeals is the only thing I can look at to see what the decision of that court was. By that it appears that the order was affirmed with costs, which means full costs

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(White v. Anthony, 23 H. T., 164); and the clerk was therefore right in his taxation of the bill. The motion must be denied, with five dollars costs.

From the order entered on this decision the plaintiff appealed.

C. B. Wheeler, for the appellant.

I. The order is erroneous, and should not have been entered ex-parte. The name of the judge who made it is not given in the order. An appeal from it could not be properly argued before three judges who had not heard of it (Const., Art. VI., § vm). No “judgment” has been given whatever.

II. The defendants (the mortgagors) cannot have any costs, because in October, 1868, their names were, on their own application, struck out of the action. They have no standing in court. The action is still pending in this court, and the decision and order say nothing about costs, and none can be entered against a party in an action like this, unless by the special order of the court, not of the cleric of any court.

III. This being an action of an equitable nature, the costs are in the discretion of the court in which the action was brought, and cannot be given until the final decree is made (Kreitz v. Frost, 55 Barb., 474 ; Code of Pro., §§ 304-306; People v. Collier, 3 How. Pr., 379 ; Heins v. Meyer, 4 Id., 356; Gallagher v. Egan, 2 Sandf., 742 ; Pennell v. Wilson, 2 Abb. Pr. N. S., 466, 478; S. C., 5 Robt., 661; Whitbeck v. Patterson, 22 Barb., 86 ; McGregor v. Buel, 1 Keyes, 153; Stargier v. Schultz, 3 Id., 614; Clark v. Tunicliff, 38 N. Y., 58 , 61; S. C., 4 Abb. Pr. N. S., 451; McGregor v. Buel, 33 How. Pr., 450 ).

IV. In an action for the foreclosure of a mortgage, the costs are controlled by section 306 of the Code, and on a motion in the court of appeals (as this, and the one in which the plaintiff succeeded, were) only motion costs

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(if any) including all disbursements, can be allowed by any court. Such an appeal is a non-enumerated motion. The case in 23 Af. T., cited by the court at special term, was a common law action, and decided in March term, 1861, and this fourth subdivision of section 11 of the Code, was added by the legislature in 1867, and amended in 1869. It is declared by the legislature to be a non-enumerated motion.

The court of appeals in 1861 could not control or anticipate the future action of the legislature. The costs on this appeal were controlled by section 315 of the Code. In motions under subdivision 4 of section 11 of the Code, motion costs (ten dollars) only, are allowed (Borst v. Levy,^[2] Court of Appeals, Code, 10 ed., 686; Calendar of the Court of Appeals for 1869 and 1870, p. 5; 2 Laws of 1867, p. 1920; 2 Laws of 1869, p. 2197; Code, §§ 306, 315; Travis v. Waters, 12 Johns., 500 ; Savage v. Darrow, 4 How. Pr., 74 ; Morrison v. Ide, 4 Id., 304; Eckerson v. Spoor, 4 Id., 361; Mitchell v. Westervelt, 6 Id., 268; affirmed on p. 311; Nellis v. De Forrest, Id., 413; Ellsworth v. Gooding, 8 Id., 1; Van Schaick v. Winne, Id., 5; Bartow v. Cleveland, 7 Abb. Pr., 339 ; S. C., 16 How. Pr., 364 ; Pratt v. Ramsdell, 7 Abb. Pr., 340 ; S. C., 16 How. Pr., 59 ; O’Hara v. Brophy, 24 Id., 379).

V. The clerk cannot adjust interlocutory costs on a mere question of practice, in an equity cause like this. He can only adjust costs on a final judgment, unless specially authorized to do so by order of this court. His duties are merely ministerial, —not judicial, —so with the clerk of the court of appeals. It does not appear that the court of appeals gave him any authority to write the words uwith costs” in the remittitur (Code, section 311, and cases cited under this section in 9 ed.; Hicks v. Waltermire, 7 How. Pr., 370 ; Hunt v.

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Middlebrook, 14 Id., 300; Torry v. Hadley, 14 Id., 357; Hanna v. Dexter, 15 Abb. Pr., 135 ; Pinckney v. Childs, 15 Id., 138 ; Pennell v. Wilson, 5 Robt. , 661, Purchase v. Bellows, 16 Abb. Pr., 108 ).

Alexander Lamont, for the respondents.

I. The order, making the judgment of the court of appeals the judgment of this court, was properly entered at special term by Justice Ingraham (Plimpton v. Robinson, 25 N. Y., 484 )

II. The order, making the judgment of the court of appeal, the judgment of this court, was the proper one. The courts having no power to render any other judgment than one simply adopting that of the court of appeals (McGregor v. Buell, 17 Abb. Pr., 31 ).

III. The costs were properly taxed. There being no difference between an appeal from a judgment, or an order, in the court of appeals (White v. Anthony, 23 N. Y., 164 ).

IV. Justice Cardozo properly denied the motion of the plaintiff to modify the order of Justice Ingraham, and to set aside the taxation of costs, and made the proper order in the premises, and the order should be affirmed with costs and disbursements to the respondents.

The case of White v. Anthony ( 23 N. Y., 164 ), decides that on an appeal from an order, the costs in the court of appeals are the same as on a judgment. We must follow that case until we have an authorized decision to the con trary. The rule has been, when the court intended to depart from this case, to specify in the order the amount of costs allowed.

The disbursements are erroneous, being charged for as if there were an entry of judgment. Those items,

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amounting to three dollars and seventy-nine cents, must be deducted, and the adjustment as to the balance affirmed.