Majority
p. 744Matter of the Application of the Water Commissioners of Amsterdam, Appl’ts, to acquire certain rights in Lands of John C. Chalmers and Gertrude Chalmers, Resp’ts.[1] (Court of Appeals, Filed February 11, 1887.)
Headnote
Costs.The words “with costs ” in an order of reversal or affirmance in the court of appeals, in a case 'where the allowance of costs is discretionary, mean costs in that court only.
M. L. Stover, for appl’ts; John M. Carroll, for resp’ts.
In the case of Sisters of Charity v. Kelly, 68 N. Y., 628 , we construed the words “ 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 Sisters of Charity v. Kelly, has been followed since the decision of that case, unless by inadvertance. The reversal on the original appeal in this ease .was “ with costs,” and, as construed,
p. 745
entitled the appellant to costs in this court only. If tlie 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 8 Civ. Proc. R. 265, but intentionally omitted in the opinion as published in the regular series, we think the reversal should be without costs.
All concur.