People ex rel. Bates v. Speed — 57 N.Y. St. Rep. 295

Majority

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The People ex rel. Frederick E. Bates, Resp’t, v. Robert G. H. Speed, et al., App’lts.

(Supreme Court, General Term, Fourth Department,

Filed December 8, 1893.)

Headnote

Costs. —Mandamus against public officers.

In proceedings, by mandamus, against public officers, the special provisions of section 3358 of the Code governs as to the allowance of costs.

Appeal from an order denying the motion for costs.

Robertson, Smith <& Bull, for appellants; Frederick Collin, for respondent.

This is an appeal from an order of the special term denying a motion for costs and increased costs. The action or proceeding was commenced by an application, made upon affidavits, for an order to show cause why a mandamus should not issue directing the defendants Speed, Personious, Peters, and Cross, as inspectors of election of the town of Caroline, to reconvene as presiding officers and inspectors of election of a town meeting, and reannounce and declare that John Bull, the Democratic candidate for supervisor, was ineligible to the office, and requiring the defendant Lounsberry, as town clerk.of the town of Caroline, to cancel the record made by him relative to the town meeting, and the defendant Van Kirk, as clerk of the county of Tompkins, to transmit to the town clerk for cancellation the certificate received by him. An alternative writ was issued. An answer was interposed on the part of the defendants who were the inspectors of election, and a reply was served. Upon the issue thus made the case came to trial at the circuit, and the complaint was dismissed. Thereupon the defendants’ attorney made a motion for increased costs, which was denied.

The single question involved upon this appeal is whether the appellants, who were public officers, were entitled to have their costs allowed as provided by section 3258 of the Code of Civil Procedure, or whether the costs were controlled by section 2086, and hence in the discretion of the court. It was held by the special term that the costs were controlled by the latter section, and the court refused to allow the defendants the costs provided by that section, or as provided by section 3258. While section 2086 provides that upon the making of a final order in a case where an alternative writ of mandamus has been issued the costs are in the discretion of the court, section 3258 declares that, where the defendant is a public officer, and the action or special proceeding .is brought by reason of an act done by him by virtue of his office, or an alleged omission by him to do an act which it was his official duty to perform, on a final order made in a special proceeding commenced by a state writ, he is entitled to recover the costs prescribed in section 3251, and, in addition thereto, one-half thereof. An examination of the former section discloses that it relates generally to all cases where an alternative writ of mandamus has been issued, while the latter section relates to and prescribes the rule to be applied in a case where the defendant is a

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public officer whose act or omission as such has been called in question in an action or special proceeding commenced by a state writ. The provisions of the former section are general, while those of the latter are special. Under such circumstances, the general statute is to be read as silently excluding, from its operation cases which have been provided for by the special one. End. Interp. St. § 223. In this case we think the special provisions contained in section 3258 control the general provisions contained in section 2086, and that the defendants in this case were entitled to tax- their costs as provided in section 3258, and that the order appealed from should be reversed, and the defendants’' motion granted.

Order reversed, with $10 costs and disbursements, and motion granted authorizing cost's and increased costs to be taxed as provided by Code Civil Proc. § 3258.