In Matter of Petition of Prot. E. Pub. School

Finch, J. The question of costs presented for our determination arose upon a petition to vacate an assessment in the city of Hew York. That was a special proceeding. (In re Jetter, 78 N. Y. 601; In re Manhattan Savings Inst., 82 id. 142.) Ho costs, therefore, followed its decision unless awarded by the order of the court, which had discretion to either grant or withhold them. If granted, however, the rate should have been the same as for similar services in an action. (Code, § 3240.) The petitioner succeeded at the Special Term and the assessment was ordered to be vacated with costs. The city appealed to the General Term, which reversed the order, with ten dollars costs to the city. The petitioner thereupon appealed to this court, which reversed the order of the General Term, and affirmed that of the Special Term “ with costs.” That award gave only the costs of the appeal in this court. (Sisters of Charity v. Kelly, 68 N. Y. 628; People, ex rel. Morris, v. Randall, 8 Daly, 82.) Upon filing the remittitur, the petitioner, at a Special Term, entered an order maldng our judgment that of the Supreme Court, and concluding thus: “ And that the petitioners recover their costs of appeal subsequent to said order.” Upon this state of facts the petitioner claims to tax in its favor full costs of the appeal to the General Term, and the city resists that claim. It is apparent that the General Term have *398 never exercised their discretion in favor of the petitioner. It does not follow, from their award of ten dollars costs to the city, that if they had affirmed the order appealed from, they would have given costs to the petitioner. We are not at liberty to guess at their possible action in an emergency which did not happen. If, on the appeal to this court, we had the power to have awarded costs in the General Term, it is sufficient to say that we did not do it. The right, of the petitioner, therefore, has no foundation upon which to rest, unless it be the order of the Special Term entered upon the filing of the remittitur. But the Special Term had no discretion to exercise. The question was not before it. Its sole duty was to enter exactly the order which this court directed, and it could neither add to nor take away from our judgment. (McGregor v. Buell, 1 Keyes, 153.) We must, therefore, construe the order of the Special Term in accordance with their power and duty, and not in excess of it, if such construction be possible. We think it is, and that such order merely gives to the successful parties astheir costs of appeal subsequent to said order ” such costs as had been legally awarded, or such, if any, as the law fixed and awarded. It is only such that could fairly be understood by the phrase “ their costs of appeal.” There was, therefore, no warrant for allowing the costs of the appeal to the General Term. The order should be affirmed, with costs. All concur. Order affirmed.