Stevens v. Central Nat. Bank

HERRICK, J. As a general rule, it is the duty of the special term, upon the return of a remittitur from the court of appeals, to enter exactly the order or judgment which that court directs, and neither add to nor take away from such judgment or order. McGregor v. Buell, *40 N. Y. 153; In re Protestant Episcopal Public School, 86 N. Y. 396. Under those decisions where nothing is said as to costs, none should ordinarily be given by the special term in rendering its judgment upon the remittitur. The direction of the court of appeals in this matter is rather indefinite. It directs that the judgment be rendered without costs in that court, but it also provides that the mandate of the supreme court of the United States be annexed to the remittitur, and the proceedings thereupon be remitted to the supreme court of the state of New York for proceedings upon such remittance. This, I think, makes the mandate of the supreme court of the United States a part of the remittitur of the court of appeals; and the mandate of the supreme court of the United States recites that the judgment of the court of appeals he, “and the same is hereby, reversed, with costs.” It then proceeds to provide that the appellants recover against the “respondents, Aaron R. Stevens et al.. $1,047.70, for their costs herein expended.” The first, I take it, means costs generally in the case, and the last an award and statement of the costs of the appellants in the supreme court of the United [674] States; and the judgment being reversed with costs, and the direction of the court of appeals being that the supreme court render judgment conforming to the said mandate, the special term, I think, was correct in ordering a judgment to be directed with costs. The order appealed from should therefore be affirmed. Order affirmed, with $10 costs and disbursements. All concur, except PARKER, P. J., and MBRWIN, J., dissenting.