pleas reversed the general term order and reinstated that of the special term: Held, that the entry of a new judgment for all costs to date was unauthorized; that the judgment entered on the first order should be enforced, and the costs of the subsequent proceedings collected by execution in the nature of a precept.
The plaintiff recovered a verdict for six cents damages for an injury to certain real property, of which the plaintiff was owner in fee. Upon this verdict the plaintiff entered judgment for six cents damages with a full bill of costs, on the ground that “ the title to real property came in question." Upon appeal from the taxation, the special term judge held that the inquiry was to “ the possession only," set aside the judgment as to costs, and awarded them to the defendant. 22 Abb. 27 . C., 462. The defendant thereupon entered judgment in his favor, April 4, 1889, for his costs, crediting the plaintiff with the amount of the verdict.
The plaintiff appealed to the general term from the order awarding costs to the defendant, and the special term order was reversed, on the ground that by the amended complaint the damages claimed were for injuries to the freehold, and were of such a character as were not recoverable except by the owner of the fee out of actual possession, and that the title to realty, which was disputed, necessarily came in question. 25 27. Y. State Rep., 851; 4 1ST. Y. Supplt., 865. The defendant thereupon appealed to the common pleas, which court reversed the general term, and reinstated the order of the special term, whereupon the defendant entered a new judgment, December 6, 1889, for all the costs to that date, to wit, for $338.68. The present application is by the plaintiff to vacate the last mentioned judgment for irregularity.
T M. Tyng, for motion; George W. B hint, opposed.
The judgment of April 4, 1889, was regularly entered by the defendant, for there could be but one judgment in the action. Johnson v. Farrell, 10 Abb. Pr., 384 . By the reversal of the general term order its entire effect was wiped out9as if it never had an existence. Murtha v. Curley, 3 Civ. Pro. R., 266; 92 N. Y., 359 . And, as a necessary consequence, the judgment directed by the special term, and entered April 4, 1889, was eo instanti reinstated. 27o appeal was taken from the verdict or the “ six cent ” part of the judgment, and consequently the foundation upon which the right to costs depended was not and could not be disturbed.
The appeals taken had reference to the right to costs; a mere-incident of the recovery, and to that only. Under the circumstances, the defendant was bound to enforce the judgment entered by him April 4, 1889, in the usual manner of enforcing judgments, and was bound to collect the costs subsequent to that judgment by execution in the nature of a precept, founded solely on the order of reversal. An entry of judgment for costs, in their nature interlocutory, is wholly unauthorized, for they are practically motion costs, within the meaning of § 779 of the Code. In re Brasier, 2 How., N. S., 154. The defendant erroneously