Callanan v. Gilman

Freedman, J. At special term the had for relief, with $164.20 costs. The general term affirmed the judgment, with , $87.29 costs. On defendant’s appeal the court of appeals modified the judg- . ment. 14 N. E. Rep. 264. The material parts of the remittitur are as fol- . lows, viz.: “Whereupon the said court of appeals * * * did order and adjudge that the judgment of the general term of the superior court of the city of FTew York appealed from in this action to this court be and the same is hereby modified as stated in the opinion, without costs. And it is also further ordered that the record aforesaid and the proceedings, in this court be remitted to the said superior court, there to be proceeded upon according to law. Therefore it is considered that the said judgment be modified as stated in the opinion, without costs, as aforesaid.” On reading and filing the remittitur an order was made at special term making the judgment of the court of appeals the judgment of this court, and modifying, the original judgment accordingly, without costs in the .court of appeals. The modification related to . the extent of the injunctive relief granted by the judgment. The defend- . ant thereupon tendered to the plaintiffs the sum of $164.20, with interest, as and for the costs of the original judgment, but declined to pay the ¡costs of the general term judgment; and the tender having been for that rea [703] son refused, the defendant moved for an order of satisfaction of both judgments upon the deposit by him with the clerk of this court of the sum of .$164.20, with interest. His motion was denied at special term, and the present appeal is from the order of such denial. The defendant has a right to have his liability for costs beyond the amount tendered by him determined, and a motion is the proper remedy. Patten v. Stitt, 50 N. Y. 591. So it must be conceded that, inasmuch as the action is of an equitable character, the court of appeals had full power to dispose of the entire action, and to determine absolutely the question of costs. It therefore remains to be seen what the court of appeals actually determined. On the motion below the burden was on the appellant to establish the extent of such actual determina-, tian. By the tender of the costs inserted in the original judgment with interest the appellant impliedly admitted that the court of appeals did not intend that there should be no costs whatever. The actual intention on the part of the court of appeals he was bound to substantiate by proof. The evidence of such actual intention is to be found in the remittitur and the opinion. They must be construed together, because the remittitur refers to the opinion as the source from which the nature and the extent of the modifica-, tian is to be gathered. But the printed papers on the present appeal do not •contain the opinion, nor has the opinion been brought to our attention in any other way. For all that appears, therefore, the court of appeals may have intended to grant without costs in that court a modification which should not interfere with the costs imposed below. The question seems to be a close one, but under the imperfect disclosures of all the facts which bear upon it, and in view of the fact that the order now under review was made by the same learned judge who directed the entry of the order upon the remittitur, I am not prepared to say that there is error in the order appealed from. The order should be affirmed, with $10 costs and disbursements. Sedgwick, G. J., and O’Gorman, J., concur.