Crosby v. Brown

By the court, Barker, J. The disposition to be made of this appeal is determined by the case of Woodbury agt. Morton, (ante p 56.) In that case the cause originated in justice’s court, and was re-tried in the county court on appeal; A new trial was granted in the county court upon a case containing exceptions. An appeal from such order was taken to the general term. It was held that the successful party on that appeal could not recover costs as allowed by sub-division 5 of section 307 of the Code. That it presented a case coming within the exceptions enumerated in same sub-division. That the appeal is under sub-division 2, section 344. In that case the motion in the county court for a new trial was made before judgment was perfected on the verdict. In this instance the motion for a new trial was after judgment on the report of a referee. To our minds this circumstance does not make the cases dissimilar so far as the question of costs is concerned. In this case, as in that, the appeal is [151] from an order and not from a judgment. The question presented is in the very terms of the exception contained in the section above cited. There is no room left for construction, for it 'cannot be fairly said that the legislature did not intend just what is so plainly stated. We are referred to the case of Williams agt. Murray, reported in (32 How. Pr. Rep. 187,) as an authority, in support of the bill of costs as allowed. The section of the Code under consideration has been amended since that adjudication, and it is not in point. By section 344, provision is made for an appeal from judgments rendered in the county court and also from orders entered in the same court. By this appeal from an order setting aside the judgment and ordering a new trial, the record of the judgment in the county court was not brought into this court, nothing more than the bill of exceptions and the order appealed from were properly before this court. The order of this court reversing the order of the court below left the judgment of the county court in full force and effect. Judgment of affirmance .to be entered in this court is unnecessary. The memorandum of this court, entered by the clerk, indicates, it is true, that such a judgment was directed by this court, but it is manifest that the real order intended was simply to reverse the order appealed from ,At least that is all this court had power to do. The court did not award costs in disposing of the appeal, so the plaintiff is not entitled to the usual motion costs. The order of the special term is reversed and a re-taxation ordered, striking out all costs on appeal to this court. No costs awarded to the appellant.