Pitkin v. Cooley ( 1875 )

GILBERT, J. :

The Code does not define remedies; it merely distributes them into two classes, viz., actions and special proceedings. Whether a given remedy belongs to one or the other of these classes, is determined at the commencement of it; and every incidental or interlocutory application for relief in .either class, whether before or after judgment, is a step taken in the action, or special proceeding, as the case may be. It is not a new or independent remedy. (See Belknap v. Waters, 1 Kern., 478.) It has been held repeatedly, that proceedings supplemeútary to execution belong to the action in which the judgment was entered. (Seeley v. Black, 35 How. Pr., 369.) A fortiori, a motion to set aside a judgment, or to vacate a satisfaction thereof, is a proceeding in the action. The direction of the court therein is an order (Code, § 400); and an application for an order is a motion. (Sec. 401.) The question is whether, when the court has, in the exercise of the discretion conferred upon it by section 315, granted costs of a motion, it has power to include in the adjustment of such costs the necessary disbursements of the successful party. We think it has. By section 311, the clerk is required to insert necessary disbursements in the entry of judgment; and that section further provides that “wheneverit shall be necessary to adjust costs in any interlocutory proceeding in an action,” etc., the same shall be adjusted by the judge or the court, or in such other manner as the court shall direct. No other authority for the recovery of disbursements, in addition to the specific allowances for costs, is contained in the Code. Such disbursements are recoverable only by virtue of the authority given to adjust them. They are to be added to sums fixed by law. The power conferred upon the court or judge is the same in kind, namely, a power to adjust costs. In short, this section, fairly construed, makes the ascertaining and inserting of the necessary disbursements, a part of the duty of adjusting costs. In interlocutory proceedings, it is to be done by the judge, or court;, in other cases by the clerk. Indeed, we can conceive no act which the judge can do in adjusting interlocutory costs, except to ascertain and fix the amount of the disbursements, for all besides has been before determined, by him, and it would be idle to do the same act twice. The maximum limitation contained in section 315, has no more restrictive effect than tbe fixed limitations contained in the other sections relating to costs. In Bond v. Smith, (4 Hun, 48), this court allowed disbm'sements besides costs on affirming an interlocutory order.

The court is authorized to direct a' reference, when a question of fact arises upon motion in any stage of the action. (Sec. 271.) The compensation of the referee is provided for (sec. 313) and it is reasonable to presume that it was the intention of the legislature, that the successful party should have the means of recovering his disbursement therefor. We are therefore of opinion that the court had no power to allow more than ten dollars besides disbursements, and that it had power to allow the necessary disbursements in addition to that sum. As the special county judge acted upon the supposition that he did not possess such powei*, the order must be reversed, and the proceedings remitted to the court below, with a direction to readjust the costs. (Tilton v. Beecher, 59 N. Y.)

Present — Mullen, P. J., Smith and Gilbert, JJ.

Ordered accordingly.