Rosa v. Jenkins

Hardin, J. According to our decision in Woodford v. Budklin (14 Hun, 444), the discretion exercised in an equity action as to costs cannot be reviewed upon a motion, and must be challenged by an exception to the findings and an appeal from the judgment. Therefore the appellants are entitled to review the exercise of discretion in respect to the extra allowance of costs, and the award of costs of twenty-five dollars to defendant Clark and others, as administrators of John B. Clark. First. As to the award of costs to the defendant Clark, of twenty-five dollars, the finding is silent as to how these costs shall be paid. They are therefore presumably payable by .the plaintiff, whose complaint as to those defendants is ordered dismissed. In the absence of a case showing what took place at the trial, we have not the proper data to enable us to say that the discretion in awarding the costs was improperly exercised. We, therefore, must assume the court had proper ground for making the award of those costs. (Morrison v. Agate, 20 Hun, 23; Noyes v. Children's Aid Society, 3 Abb. N. C., 37.) Second. In the judgment presented to us we see no evidence that it was inspected, settled and directed by the court. We therefore assume that the decision of the trial term was filed, and that the judgment was entered ex parte by the clerk, and that there is no other warrant for it than such as is given by the findings of fact and law made by the trial court. But the judgment as entered contains the following, viz.: “ It is also further ordered and adjudged that plaintiff’s complaint herein as to the defendants Fannie M. Clark,” * * * be and the same is hereby dismissed, with twenty-five dollars costs and disbursements, payable out of proceeds of sale, to such defendants’ attorneys.” We find no warrant for the words “payable out of pro [386] ceeds of sale” in the decision made by'the trial judge. Doubtless, upon a motion, the judgment might have been made to conform to the decision, but we have power to strike out the provision inserted unwarrantably in the judgment, and should do so. That will leave the costs payable by the plaintiff, and save the property from being charged therewith. Third. As to the allowance of costs of five per cent. First. We think section 3253 of the Code of Civil Procedure limits the amount of an extra allowance in mortgage foreclosure cases to the sum of “ two and one-half per cent upon the sum due or claimed to be due upon the mortgage,” and that the aggregate cannot exceed the sum of $200. The language of that section differs from the language of section 309, as amended by chapter 431 of the Laws of 1876. The case of Bockes v. Hathorn (17 Hun, 87), was decided while the amendment of 1876 was in force. We think the language of section 3253 restricts the allowance in mortgage foreclosure cases to two and one-half per cent, and that the effect of the language of section 3253 is to lay down substantially the rule adopted by the Court of Appeals in Hunt v. Chapman (62 N. Y., 338). It follows, therefore, that the exception to the finding of law allowing five per cent is well taken. . , The judgment should be modified (1) by striking therefrom the words “ payable out of the proceeds of sale to such defendants’ attorneys,” as they appear after the words dismissing the plaintiff’s complaint, with twenty-five dollars costs and disbursements, and amended so as to award twenty-five dollars costs and disbursements against the plaintiff; and (2) by striking therefrom two and a-half per cent upon the amount found due upon the mortgage, and that as the same is so modified, the same should be affirmed, with costs to the appellants, payable out of the surplus arising upon the sale of the mortgaged premises, if sufficient, and if the same be insufficient in whole or in part, then by the respondent. Smith, P. J., and Barker, J., concurred. Order modified as stated in opinion, and as modified, affirmed, with costs.