Mayham v. Allen

Learned, P. J. “ The court must award costs to the party in whose favor an appeal is determined.” Grim. Code, § 873. Costs are not defined in this-Code, probably because in most matters treated of there are no costs. Bastardy proceedings are the exception. By section 850, Grim. Code, the justices are in a certain case to certify the reasonable costs. It would seem that these costs included an attorney’s fees. Neary v. Robinson, 98 N. Y. 81. In Su 101 perintendents v. Moore, 12 Wend. 273, similar language in the Revised Statute was held to mean taxable costs. We think that is the proper meaning here. What, then, should the costs be? The defendant was held by an order of filiation made by two justices. He appealed to the court of sessions. That court vacated the order, and held defendant to trial on the merits. On the trial of fact the defendant was held not to be the father of the child, and judgment for him was granted, with costs. Now, it seem to us that this proceeding is most analogous to an appeal from aejustice’s court, and a new trial in the county court, and that the costs provided in Code Civil Proc. § 3073, should govern. It is held, in substance, that this is a civil proceeding, (Rivenburgh v. Henness, 4 Lans. 208;) and therefore we may well adopt the provisions of this section. The plaintiff objects that defendant taxed his costs, and entered judgment, and therefore cannot now have relief. The so-called “costs” were only disbursements, and it does not appear that the defendant entered the judgment. If the clerk entered it without defendant’s direction, the defendant should not be prejudiced. The plaintiff also objects that the bill of costs first presented to the clerk did not contain items according to section 3073. But the clerk did not take the ground that other items should be allowed, but rejected costs, other than disbursements, altogether. We think, therefore, that the order of the court of sessions appealed from should be reversed, with $10 costs, and printing disbursements, and that the motion for retaxation by the clerk, in accordance with the views above expressed, should be granted, with $10 costs. Landon and Ingalls, JJ., concur.