White v. . Anthony

The appeal in this case, having been taken from an order of the Supreme Court, affecting a question of practice merely, was dismissed with costs at a previous term of this court, after the question involved had been submitted for decision on the merits, upon the ground that the order was not appealable. The remittitur has been sent down to the Supreme Court, and filed in the proper office. In that, it is stated to have been adjudged by this court that the appeal be "dismissed with costs." A motion is now made that the remittitur be corrected, and that the amount of costs to be paid in this court be fixed therein, and that the same be chargeable only upon the fund represented by the plaintiff, "on the ground that the remittitur by mistake does not define the amount of costs to be paid, and omits to charge the same only upon the fund represented by the plaintiff." It is conceded by the appellant that this court intended to allow the respondent his costs on the dismissal of the appeal; but it is insisted that the costs on a motion only, and not the general costs on an appeal, can be allowed, and that the amount of those costs should have been fixed and stated in the remittitur. This view of the question is erroneous. Appeals may be taken to this court from certain orders made by the Supreme Court, as well as from their judgments; and no distinction is made by the Code between the two classes of appeals in the allowance of costs. The provision regulating them is general. It allows "to either party, on appeal to the Court of Appeals, before argument, $25, and for argument $50." (§ 307, sub. 6.) *Page 166 A different rule prevails in relation to appeals from orders at special term to the general term of the Supreme Court. An express exception to the allowance of general costs in such cases is made in subdivision 5 of the same section. It is thereby declared, that there shall be allowed to "either party, on appeal, except to the Court of Appeals, and except in the cases mentioned insection 349," certain specified sums. Those cases are, appeals from a designated class of orders made at special term, or by a single judge of the same court, or by a county judge. This exception in relation to appeals in the Supreme Court, and the omission of it in this court, manifests an intention to place all appeals brought here on the same footing. At all events, no distinction is made between them. There is, therefore, no ground for the allegation of a mistake in the remittitur in respect to the direction as to costs. The other branch of the application, which seeks that the costs be chargeable only upon the fund represented by the plaintiff, cannot be entertained. Assuming that the effect of the judgment, as contained in the remittitur, is to charge the costs on the appellant personally (but as to which we express no opinion), there is no allegation that the judgment is not in fact conformable to the decision actually made. That decision cannot be changed on this application. The motion must, therefore, be denied.