Clark v. Sullivan — 31 N.Y. St. Rep. 756

Majority

p. 756

Charles W. Clark, Resp’t, v. Sarah E. Sullivan, App’lt.

(Supreme Court, General Term, Fifth Department,

Filed June 19, 1890.)

Headnote

1. Costs—Appeal—Practice.

The direction of the general term as to costs on appeal to that court, if erroneous, should he corrected by an application to that court for a modification or revocation of the order; it cannot he collaterally attacked on appeal from another order.

2. Same—Commission—Code Civ. Pro., § 3251, bub. 4.

Section 3251, sub. 4, of the Code has no application to an appeal from an order directing the issuance of a commission to take testimony out of . the state.

p. 757

Appeal by defendant from an order of the Monroe special term denying motion for re-taxation of costs.

jHenry Z. Sullivan, for app’lt; Zachary P. Taylor, for resp’t.

The Monroe county judge made an order directing a commission to issue to take the testimony of a witness out of the state; as amended it was entered September 7, 1889. The general term on appeal reversed the order with ten dollars costs and disbursements. The county clerk so taxed. The defendant appealed from the taxation of the clerk to the special term of this court, claiming that she was entitled to twenty dollars before argument, and forty dollars for argument at the general term, instead of ten dollars0 costs and disbursements as specified .in the general term order. The special term denied the motion for re-taxation. This appeal is from that order.

If the general term fell into an error in directing the amount of costs, it is obvious that the remedy of the defeated party would be an application to that court for a modification or revocation of the order. Gould v. Root, 4 Hill, 554 .

It would lead to great mischief and confusion to attack the de-, cisions of this court collaterally on appeal from another order., The well established practice is the other way. Aside from this the order was right on the merits. Ranney v. Peyser, 3 Law Bull., 10; Phipps v. Kerr, 26 Hun, 518 .

It was simply an appeal from an order, and § 3251, subdivision ■ 4, has no application. The motion was non-enumerated. Secs.' 779 and 767.

The order should be affirmed.

Dwight, P. J., and Macomber, J., concur.