People ex rel. Keene v. Board of Sup'rs

CULLEN, J. These are three separate appeals from as many orders of the special term. It is unnecessary to state their character [570] further than to say, they go to a single point,—the right of the relator to the costs of this court at special and general terms. An alternative writ of mandamus was issued to the appellants, to which they demurred. The demurrer was sustained at special term and at general term, with costs to the defendants in each instance. The court of appeals reversed the judgments of the general and special terms, “with leave to the defendants to answer on payment of costs.” 36 N. E. 1062. The relator then applied to the special term for an order granting him the costs of the general term and the special term, which was granted. We think that, under section 2086 of the Code, as to mandamus, and from the fact that mandamus, though strictly a remedy at law and not in equity, does not fall within the terms of section 3228, the relator was not entitled to these costs as a matter of right. If so, unquestionably, the costs were in the discretion of this court. It is true that such costs had been awarded by this court to the present appellants. But such awards fell with reversal by the court of appeals of the judgments of which those costs were the incident. Thereupon the subject-matter of costs was before this court undetermined, and subject to the exercise of its discretion. The case of Barnard v. Hall, 143 N. Y. 339, 38 N. E. 301, is an authority exactly in point. The special term properly exercised its discretion in favor of the relator. Had this court given a right judgment, instead of a wrong one, he would have been granted costs in the first instance. The general term costs, we think, could only be granted by this branch of the court. But a motion lias been made to this general term for that purpose, and that application should be granted. The orders appealed from should be affirmed, with $10 costs and disbursements, except so far as they grant the relator the costs of these proceedings at general term, and the motion of relator at general term for the allowance of such costs should be granted. All concur.