In re the Water Commissioners of Amsterdam

Headnote

The words “with costs” in an order of affirmance or reversal in this court, in a case where the allowance of costs is discretionary, mean costs in this court only.

{Murtha v. Curley, 92 N. Y. 359 ), distinguished,

This was an appeal from an order of General Term, affirming an order of Special Term directing a retaxation of costs.

This court reversed an order of General Term herein, confirming a report and award of commissioners, set aside the report “ with costs,” and directed a rehearing before new commissioners. The clerk taxed only costs of the Court of Appeals.

The following is the mem. of opinion.

“In the case of The Sisters of Charity v. Kelly ( 68 N. Y. 628 ), we construed the words 1 with costs ’ in an order of reversal or affirmance in this court, in a case where the allowance of costs is discretionary as meaning costs in this court only. The case of Murtha v. Curley ( 92 N. Y. 359 ) was one where the prevailing party was entitled to costs as of course, and the decision was placed upon that ground.

“ The rule we established in The Sisters of Charity v. Kelly has been followed since the decision of that case, unless by inadvertence.

“The reversal on the original appeal in this case was ‘ with costs,’ and as construed, entitled the appellant to costs in this court only. If the appellant deemed himself aggrieved, his remedy was to apply to this court for an amendment of the order. The order of the General and Special Terms should, therefore, be reversed, and the taxation by the clerk affirmed.

“ But as the appellant may have been misled by a remark in the opinion in Murtha v. Curley, as published in 3 Civil Procedure Report, 265, but intentionally omitted in the opinion as published in the regular series, we think the reversal should be without costs.”