Shlakman v. Board of Higher Education , 166 N.Y.S.2d 204 ( 1957 )

Jacob J. Schwartzwald, J.

Respondent moves to retax a bill of costs heretofore taxed by the Clerk of the County of Kings. The Court of Appeals of the State of New York in amending the remittitur in this cause so as to conform to the mandate of the Supreme Court of the United States ordered that the orders of the Appellate Division and the Special Term of this court be reversed in denying petitioner’s request for relief and further awarded “ costs in all courts ” to the petitioner. The clerk taxed costs upon the appeal to the Appellate Division pursuant to subdivision 1 of section 1508 of the Civil Practice Act. The respondent asserts that costs in the proceeding can only be taxed in accordance with subdivision 2 of section 1508 of the Civil Practice Act, and not until the costs in the Appellate Division are determined may there be any taxation for any disbursements in connection with the appeal to the Appellate Division.

The proceeding herein was instituted pursuant tó article 78 of the Civil Practice Act to review and rescind an order of the respondent discharging the petitioner from his position as an associate professor at Brooklyn College. In a certiorari proceeding in Cohen v. Fields (88 N. Y. S. 2d 455) this court directed the clerk to tax costs in such proceeding pursuant to subdivision 2 of section 1508 of the Civil Practice Act. The decision therein was in line with, the customary practice of the Appellate Division of the Second Department to allow full appeal costs only where the appeal is from a judgment rendered after trial of an issue of fact. (See Eighth Annual Report of N. Y. Judicial Council, 1942, pp. 455-456.) Accordingly, it is my view that the clerk erred in taxing costs pursuant to subdivision 1 of section 1508 of the Civil Practice Act. Under subdivision 2 of said section an award “ not exceeding fifty dollars besides taxable disbursements ” may be fixed by the court. It would appear that the petitioner’s remedy to have the amount fixed is in the Court of Appeals (Tormey v. La Guardia, N. Y. L. J., Dec. 13, 1938, p. 2112, col. 3; Eighth Annual Report of N. Y. Judicial Council, 1942, p. 454). Costs having been awarded, although the amount has not been determined, it would appear that the taxation for disbursements in connection with the appeal was proper. The right to disbursements is incident to the right to costs (Carmody-Wait on New York Practice, Vol. 11, p. 169; Vol. 23, p. 194) and not as to the amount of costs.

The motion accordingly is granted to the extent that the items taxed for “App. to Appellate Div. before arg’t. — $20.00 ” and “ App. to Appellate Div. for arg’t. —$40.00 ” be stricken.

Settle order on notice.