In re Van Dusen — 132 A.D. 592

Majority

p. 592

In the Matter of the Application of Orville J. Van Dusen, Respondent, to Lay Out a Highway in the Town of Caldwell, Warren County, New York. Henry E. Tremain and Sarah G. Tremain, Appellants.

‘Third Department,

May 5, 1909.

Headnote

Costs — appeal from. order appointing commissioners to determine necessity of highway.

An order appointing commissioners ■ to determine the necessity for a high- ■ way,.and overruling objections to the appointment, is not a final order determining the rights of parties, and hence, costs of an appeal from the order should be awarded pursuant to section 3239 of the Code,-of Civil Procedure, and hot as upon an appeal in a special proceeding where by virtue of section 3240 of the Code of Civil Procedure the costs may be at the rate allowable in an action.

Appeal by Henry E.- Tremain and another from air order of the Supreme Court, made at the Saratoga Special Term an'd entered in the office of the clerk of the county of Warren- on the 3d day of ■ February, 1909, denying the appellants’ motion for a new taxation . of costs. ^

J. A. Kellogg, for the appellants.

T. D. Trumbull, Jr., and James S. Kiley, for the respondent.

Upon the application for the appointment of commissioners to determine upon- the necessity of a highway' the - appellants, the landowners, appeared and opposed - the application. The objections were overruled and an order was made appointing the commissioners. An appeal was taken from the ordér to this court, whel-e the order was affirmed,. “ with, costs- of said appeal to the respondent.” ( 128 App. Div. 933 .) The respondent proceeded to tax the costs and disbursements, which consisted of the following items : Before argument, twenty dollarsfor argument, -forty dollars; disbursements, seven dollars and twenty-six cents. The appellants insisting that the respondent was only entitled to ten dollars motion costs and disbursements, applied to the Special Term for an order directing a new taxation. The motion was denied and-this appeal was taken.

We are decidedly of the opinion that the costs should have! been

p. 593

taxed as upon an appeal from, a simple order, and not at the full rate allowable in an action.

The order appointing the commissioners did not determine the rights of the parties or end the proceeding, and, therefore, was not a final order. It was the decision of a motion made in the progress of the proceeding and it is quite manifest that the costs awarded should be in accordance with section 3239 and not as costs upon an appeal in a special proceeding under section 3240. The hearing of the appeal to the Appellate Division is to he regarded as a motion for the purpose of costs, and the same sum might have been allowed as on the decision of a motion, ten dollars and disbursements. (§ 3251.) The amount was not fixed by the court in the order of affirmance, but the decision that the respondent have costs of the appeal may be deemed an award of the full amount of costs allowed to a prevailing party upon a motion, under section 3251 of the Code of Civil Procedure.

It follows that the items of costs objected to should have been disallowed, and that the order denying the motion for a new taxation must be modified so as to allow the respondent to tax costs pursuant to section 3239 of the Code of Civil Procedure, with ten dollars costs and disbursements.

All concurred.

Order modified as per opinion, and as so modified affirmed, with ten dollars costs and disbursements to the appellant.