Green v. Supreme Council of Royal Arcanum

Maddox, J. This is an equitable action and after trial had in the Special Term of this court judgment was directed and thereafter entered in favor of the [607] plaintiff for the relief sought, with costs. Upon an appeal to and review by the Appellate Division in this department, that judgment was reversed and a new trial granted, with costs to abide the final award of costs. 144 App. Div. 761, 771. Plaintiff thereupon appealed to the Court of Appeals from the said order of reversal and thereafter that order was “ reversed, and the judgment of the Special Term affirmed, with costs to the plaintiff in all courts.” 206 N. Y. 591, 597. Thereafter, upon the remittitur of the Court of Appeals, the judgment of that court was made the judgment of this court and subsequently upon a writ of error issuing out of the Supreme Court of the United States the judgment so entered upon said remittitur was “ reversed with costs; and that said respondents, Supreme Council of the Royal Arcanum, et al., recover against said appellant three hundred and fifty-seven and seventy one hundredth dollars their costs herein expended and have execution therefor,” and further, that the cause be remitted to this court “ for further proceeding not inconsistent with the opinion of ” said Supreme Court of the United States. Subsequently and on July 27, 1915, the order and judgment of the Supreme Court of the United States was by an order of this court of that date made the order and judgment of this court. That order is not' in form nor is it in fact or law a judgment, and plaintiff’s contention that it was, and that the granting of this motion would result in a modification of a judgment heretofore entered herein, is without merit. Prom the papers now before me and the statements made by counsel on the argument, it is clear that no judgment has as yet been entered in this court upon the mandate of the United States, Supreme Court. But the main question here presented is one of [608] costs, defendants’ counsel contending that they are entitled to and should be allowed costs in all courts. The judgment of the United States Supreme Court is a reversal in toto of the judgment of this court made and-entered upon the remittitur of the Court of Appeals, as above referred to, and in that regard is distinguishable from Stevens v. Central National Bank, 24 Misc. Rep. 344, 35 App. Div. 35,168 N. Y. 560, where the reversal by the United States Supreme Court related to two particulars only, the judgment appealed from being otherwise left' undisputed. Plaintiff’s claim that the reversal by the United States Supreme Court was upon the law only is of no moment here, since it appears that counsel conceded and the Court of Appeals declared in its opinion that there were no disputed facts. 206 N. Y. 597. In other words, the case was finally determined against the plaintiff. It will be seen that the judgment of reversal by the United States Supreme Court was not with costs-in all courts. The language of the mandate is “ that the judgment of the said Supreme Court in this cause be, and the same is hereby, reversed with costs; and that the said respondents, Supreme Council of the Boyal Arcanum, et al., recover against said appellant three hundred and fifty-seven and seventy one hundredth dollars for their costs herein expended and have execution therefor.” This court has no authority to add to or take away from the mandate so remitted to it; its sole duty is to enter exactly the order and judgment directed by the United States Supreme Court. A new trial was not ordered, none has been had, and the only function of this court is to order the entry of a postea as directed by said mandate. It is well settled in this state that where the Court of Appeals affirms or reverses with costs that means [609] costs in that court only. Matter of Prot. Epis. Public School, 86 N. Y. 396; Matter of Water Commissioners of Amsterdam, 104 id. 677; Broadway Savings Institution v. Town of Pelham, 148 id. 737; Fulton v. Krull, 151 App. Div. 142, 144. Where there is a different intention on the part of the Court of Appeals the reversal is, as was .in this case, with costs in all courts. 206 N. Y. 597. The Supreme Court of the United States did not award costs to defendants in the Court of Appeals of in the Appellate Division, and this court has no authority to award costs to a successful litigant in either of those appellate courts. The award of costs depends upon statutory authority conferred. • As I read the opinion and mandate'of the United States Supreme Court, the language and intention of that court is clear. It was that the successful defendant should have costs in that court only and that as such costs they recover the sum therein stated. Rule 37, 30 U. S. Rep. 724. My conclusion therefore is that defendants are not entitled to costs other than expressly awarded by the United States Supreme Court in and by its mandate, and thus the directions of such mandate will be obeyed. Motion that judgment be entered is granted, but in accordance with the views above expressed. Ordered accordingly.