Hill v. Sheldon — 28 N.Y. St. Rep. 885

Majority

p. 885

In the Matter of the Petition of Francis A. Hill, a Taxpayer, Resp’t, v. Andrew F. Sheldon, as County Treasurer, App’lt. In the Matter of the Petition of John P. Bennett, a Taxpayer, Resp’t, v. Andrew F. Sheldon, County Treasurer, App’lt.

(Supreme Court, General Term, Fifth Department,

Filed December 30, 1889.)

Headnote

1. Costs—Action to compel application op railroad taxes to town-bonds—Laws 1869, chap. 907.

The county judge has no power to award costs in a proceeding to compel the purchase of town bonds by the county treasurer, brought under the provisions of chap. 907, Laws of 1869, as amended by chap. 288, Laws 1871.

2. Same—Code Civ. Ppo., § 3240.

Section 3240, Code Civ. Pro., does not apply to such a case, as the proceeding is before the county judge as an officer designated by the statute, and not before a court of record.

Appeals from orders of the county judge of Wayne county.

C. H. Roys, for app’lts; J. Welling, for resp’ts.

The proceeding is by petition to the county judge under the provisions of section 4 of chap. 907 of the Laws of 1869, as amended by chap. 283 of the Laws of 1871. ,

We regard the decision of the case as controlled in all respects as to its merits by that of the court of appeals in Clark v. Sheldon, 106 N. Y., 104 ; 8 N. Y. State Rep., 537, which was a pro

p. 886

..ceeding of the same character, by a taxpayer of another town o£ the same county, against the same defendant as in this case.

But the question of costs in the proceeding before the county judge did not arise in that case, no costs having been awarded by the county judge to either party, and the costs awarded by the court of appeals being confined to those in that court, and in the supreme court on appeal.

In this case the county judge awarded costs to the petitioner against the defendant

This provision of the order was clearly erroneous. As we said in Patterson v. Burnett, 23 N. Y. State Rep., 363, costs, under our present practice, are a creation of the statute, and can be awarded only in cases which are clearly brought within the statutory provision. In this case the statute, cited above, which authorizes the proceeding, makes no provision for costs therein at any stage; and there is no general or special provision of the statute which, justifies an award of costs in the proceeding before the county judge. Section 3240 of the Code of Civil Procedure provides generally for the award of costs in special proceedings, in the discretion of the court, but only when the proceeding is instituted in a court of record, or on appeal to a court of record. This proceeding was instituted before the county judge, as an officer designated by the statute for that purpose, and not in any court of record or otherwise.

The order should be modified by striking out the provision as to costs, and, as so modified, affirmed, without costs of this appeal to either party.

So ordered.

Barker, P. J., and Macomber, J., concur.