People ex rel. Stilwell v. New York Produce Exchange

Lawrence, J. This was an application for a peremptory mandamus in the first instance. Section 2086 of the Code of Civil Procedure provides that, “ where an alternative mandamus has been issued, costs may be awarded as in an action, except that upon making a final order- the costs are in the discretion of the court. Where a peremptory mandamus is granted without a previous alternative mandamus, costs not exceeding fifty dollars, and disbursements may be awarded to either party, as upon a motion.” It will be observed that this section does not refer to costs in cases in which, as in the case under consideration, the application for the peremptory writ has been denied at chambers. Section 3240 of the Code provides that, “ costs in a special proceeding instituted in a court of record, or upon an appeal in a special proceeding taken to a court of record, where the costs thereof are not specially regulated in this act, may be awarded to any party in the discretion of the court, at the rates allowed for similar services in an action brought in the same court or an appeal from the same court, and in like manner.” It is under this section that the respondent is entitled to costs, if at all. The relator’s counsel contends that'section 3240 does not aid the respondent, because the costs in mandamus proceedings are specially provided for by section 2086, which I have quoted above; but, as that section says nothing about the 525 costs to be allowed to the respondent when he prevails on a motion for a peremptory mandamus, it tyould appear to be a ■ forced construction of the language of section 3240 to hold that, as costs have been specially provided for by section 2086, where an alternative writ has been issued, or a peremptory writ has been granted, in the first instance, that the respondent necessarily is to receive nothing where neither writ has been issued, and where an application for a peremptory writ has been denied. On the contrary, I am of the opinion that the respondent is entitled to costs, in the discretion of the court, at the same rates as are allowed for similar services in an action. JNow, this application was a motion (Code, secs. 767, 768; People ex rel. Cagger agt. Supervisors of Schuyler, 2 Abb. [N. S.], 78; Code, sec. 207), By section 3251 of the Code of Civil Procedure, costs upon a motion, or upon a reference specified in section 3236 of that act, may be awarded at a sum fixed by the court or judge not exceeding ten dollars, besides necessary disbursements for printing and referee’s fees. In this case there was a reference to ascertain and report the facts, which is one of the classes of references referred to in section 3236 of the Code and specially provided for by section 1015 of the Code. I am of the opinion, therefore, that the respondent is entitled to ten dollars and the amount paid by him for referee’s fees.