Chase v. Miser

Hardin, J. It has been repeatedly held that the clerk has no power of a judicial nature which he can exercise, and award costs to either party. His duties are ministerial, and he must obey the orders and directions given by the courts. [443] It was held in. Chapin v. Churchill, (12 How., 367,) that when a judgment was reversed “ without costs to either party,” the clerk had no power nor authority to enter the judgment of reversal ‘■‘■with costs.” And it was there held “he should follow the decision of the court.” Since the decision of that case, it was held in Hees v. Nellis, (1 Thomp. & C., 118,) that where a party was clearly entitled to costs, a judgment entered for costs would not be reversed and set aside, though the established practice would require the party to apply on motion, for costs. This last case is consistent with Gray v. Hannah, (3 Abb., N.S., 183.) It is here insisted, by the learned counsel for the defendant, that the General Term had no power to award a new trial. If the papers indicated that the county court passed upon the affidavits, and refused a new trial in the exercise of its discretion, the position would be upheld by Wavel v. Niles, (24 N. Y., 635.) If, however, the county judge omitted to pass upon the affidavits upon the ground that he had no power, then the General Term might reverse such holding. Smith, J., in the case last cited, says: “If in this case the county court had held that it had no power to hear and decide the question of error in fact upon affidavits, it would have been proper for the Supreme Court to have reversed such decision and remitted the case to the county court for the correction of such error.” (See also 29 N. Y, 420 ; 45 id., 499 ; 63 Barb., 553, as to review of discretion.) It does not appear by the papers here that the county court did act, one way or the other, upon the affidavits. The question, therefore, cannot now properly be passed upon, as to the power of the General Term to make the order which it made in this case. That question will more appropriately be considered when the defendant shall move to set aside that part of the decision which withholds costs from the [444] defendant; or when he shall apply to the General Terra to modify its order. [Jefferson Special Term, April, 1875. This motion, according to the rule laid down in Chapin v. (Churchill, (supra,) must be denied, with $10 costs. Order accordingly. Hardin, Justice.]