In re Hood

Headnote

Costs — when a reversal by an appellate court of a judgment with costs, entitles the successful pan'ty to the costs of the court below.

Motion to resettle an order of the General Term made February 13, 1883, in pursuance of a decision of that court. That order reversed a decree of the surrogate requiring the appellant Frederick Hood to pay Maria Louisa Hood a large sum of money and awarded the appellant one bill of costs.

The court at General Term said: “ There was no misapprehension either in the decision or the order. We intended to reverse the surrogate’s decree with costs, and we intended to deal with the whole subject of the costs. It was all before us, -and the decree was reversed and its entire effect reversed. We decided that the appellant should have succeeded before the surrogate, and if he had done so he would have been entitled to costs there. We intended to place him in the position he would have occupied had the decree of the surrogate been in his favor. It is claimed that no costs should have been awarded against Maria Louisa Hood, for the reason that she was not a party to the proceedings. What is meant by this was not very cle'ar. The decree ordered the money paid to her and she was a very necessary party to the appeal and'her attorneys appeared for her. No such question was raised on the appeal, and it must have been assumed that she was regularly brought into the appellate court.

“ While it may be assumed that when an appellate court awards

costs the effect is to include costs of sucli court only, yet, if it assumes to deal with the whole subject and wipes out and reverses the judgment or decree appealed from with costs, that includes all the costs of all the inferior courts. {Mtirtha v. Ourley, 92 N. Y., 359 ., unreported.) Such was the effect allowed by this court to the decision of the Court of Appeals, In the Matter of Walsh ( 89 N. Y., 453 ), where all of the proceedings below, both in Special Term and General Term, were dismissed with costs, we held that the court intended to control the whole subject and award costs in the lower courts, such'were our views and these are our reasons for the order complained of.”