Overseers of the Poor v. OverSeers of the Poor

Majority

p. 588

Overseers of the Poor of Blooming Grove vs. Overseers of the Poor of Minisink.

ALBANY,

Nov. 1833.

Headnote

On the affirmance by this court of an order of the general sessions, quashing an order of removal of a pauper, the defendants in error are not enti- . tied to enter a judgment for costs of affirmance, unless this court have direct ed costs to be paid to the prevailing party.

In 1829 the general sessions of Orange county quashed an order of removal of a pauper sent from Blooming Grove to Minisink. Blooming Grove sued out a certiorari removing the proceedings into this court, to which a return was made in 1829. In May, 1832, this court affirmed the order of the sessions quashing the order of removal, but made no order as to costs. Minisink taxed the costs of the certiorari, amounting to $114,77, against Blooming Grove, and entered judgment for that amount, together with $29,58, the costs of the appeal in the sessions. A motion is now made to set aside the judgment as it regards the costs of defending the certiorari.

By the Court,

By the act to prevent abuses

in suing out writs of habeas corpus and certiorari, passed 24th February, 1801, 1 R. L. 140, the proceedings upon certiorari in a case like this were recognized and regulated. The party prosecuting such certiorari is required to enter into a recognizance, conditioned to prosecute the certiorari to effect without delay ; and if the order be confirmed, to pay such costs and charges as shall be awarded. This act has been repealed, 3 R. S. 131, Jfo. 44, and no such proceeding is recognized by the revised statutes. It is unnecessary to enter into any discussion of the operation of the revised statutes upon this case, because, by the statute under which the judgment for costs has been entered, no costs were recoverable, unless “ directed by the said court." 1 R. L. 141, § 4. The rule affirming the order of the sessions is silent as to costs. If the defendants in the certiorari had thought themselves entitled to costs, they should have made a special motion to the court for that pur

p. 589

pose. It was never matter of course to award upon the recod ■costs in such a casé, unless they were specially given in the rule for judgment.

Whether this court has power to award costs in this case is ■a question not necessarily arising; I shall therefore not discuss it. This motion must be granted.