Price v. Price — 41 N.Y. St. Rep. 399

Majority

p. 399

Constance B. Price, Resp’t, v. Walter J. Price et al., App’lts.

(Supreme Court, General Term, First Department,

Filed November 13, 1891.)

Headnote

1. Costs—Appeal.

In an action for dower judgment was entered on the referee’s report dismissing the complaint, but the judgment was reversed on appeal, and a reference ordered to admeasure the dower. The referee’s report was confirmed and the judgment affirmed by the general term, but on appeal to the court of appeals the judgment and orders were reversed and judgment dismissing the complaint affirmed. Held, that the defendants were entitled to costs as respondents on the first appeal to general term, to costs as appellants on the second appeal and to costs as appellants to the court of appeals.

2. Same—Trial fee.

Defendants are entitled to but one trial fee, as but one trial took place; the proceeding to admeasure the dower not constituting a trial.

Appeal from an order affirming taxation of costs by the clerk.

James R. Marvin, for app’lts; George H. Starr, for resp’t

This action was brought to recover dower. The issues were referred to a referee to hear and determine, who reported in favor of the defendants dismissing the complaint Upon an appeal from the judgment entered on such report the judgment was reversed and judgment absolute ordered for the plaintiff, whereby it was referred to a referee to admeasure the plaintiff’s dower.

The report of the referee was finally confirmed and judgment ordered against all the defendants, awarding plaintiff dower, damages and costs. This judgment was affirmed by the court, where

p. 400

upon both parties appealed to the court of appeals,the judgment and orders subsequent to the judgment entered on the report of the referee who tried the issues in the action were reversed, and the judgment.entered upon the report of the referee dismissing the complaint with costs was affirmed, with costs to each of the defendants appearing by separate attorneys, and we have to determine the costs to which defendants are entitled.

This is an action specified in § 3228 of the Code, and upon an • appeal from a final judgment, if the judgment is affirmed, the respondent is entitled to costs as a matter of right. The defendants were the, respondents on the appeal to the general term from the judgment' dismissing the complaint, and as that judgment has been affirmed they are entitled to costs of the appeal from that judgment to the general term as well as to the court of appeals.

We think, also, that the defendants should have been allowed the costs to which an appellant is entitled on the appeal from the judgment entered on the decision of the general term. On that appeal the defendants were the appellants, and as the judgment was reversed, under § 3238 the appellants were entitled to costs. We think, therefore, that defendants were entitled to the costs of respondents on the first appeal to the general term e id to the costs as appellants on the appeal to the court of appeals. .

This ruling is in accordance with the decision of the cor rt of appeals in the case of Murtha v. Curley, 92 N. Y., 360 . Neither party is entitled to costs on the appeal of the plaintiff from the judgment entered on the decision of the general term,, because that judgment has never been either affirmed or reversed. On that appeal the defendants, who now ask to tax their costs as respondents, could only be entitled to costs in case the judgment on the appeal of the plaintiff was affirmed. Section 3238. As the judgment on that appeal was not affirmed, the judgment having been entirely reversed on the appeal of the defendants, there was no decision of that appeal, and neither party is entitled to costs thereon.

The defendants also ask the court to tax ten dollars costs for each of the motions where costs were allowed to the plaintiff by the orders which were reversed.

Motion costs are in the discretion of the court that decides the motion. It does not follow that the court in the exercise of that discretion would have granted costs of motion to defendant if the motion had been denied because it granted costs to plaintiff when the motion was granted. A party is not entitled to be allowed motion costa unless he can present an order in which such costs are allowed by the court making the order.

In this case no such order is produced.

So far as the allowance of costs are discretionary in the supreme court, a general award of “ costs ” by the court of appeals applied only to costs on the appeal to that court In re Protestant E. Public School, 86 N. Y., 397 .

The clerk therefore was correct in refusing to allow defendants the costs of the motions.

The defendants also asked to be allowed costs as upon a trial

p. 401

for each of the two proceedings before the referee under the interlocutory judgment entered upon the decision of the general term.

It is clear however that there was but one trial of the action. That was the trial before the referee to hear and determine, and in the judgment dismissing the complaint entered upon the report of that referee the costs for that trial were allowed. The proceedings on the subsequent proceedings were not trials of the action; the case had been tried and a judgment entered by the general term in favor of the plaintiff. The referee was ordered to ascertain the specific interest of the parties to the action in the property described in the complaint and to set apart to the plaintiff the portion of said property to which she was entitled, and to state an account between certain of the parties so as to ascertain the amount that plaintiff was entitled to recover. Such a reference is interlocutory in its character and is not a trial within § 3251 of the Code.

We think therefore that defendants were entitled to costs as respondents on the first appeal to the general term, to costs as appellants on the second appeal to the general term and to costs as appellants on the appeal to the court of appeals.

The order should be reversed and a re-taxation ordered in accordance with the views here expressed, with ten dollars costs and disbursements of this appeal to the appellants.

Van Brunt, P. J., and Daniels, J., concur.