People ex rel. Donovan v. Fire Commissioners , 5 Abb. N. Cas. 144 ( 1878 )

Daniels, J.

Whether costs shall not be allowed in special proceedings has been rendered subject to the discretion of the tribunal hearing and deciding the case. And that is the entire extent of the discretion allowed to be exercised upon this subject, for wherever costs are allowed, then they must be at the rate allowed for similar services in civil actions (Laws of 1854, c. 270). The act assumes that there wall be found sufficient similarity between the proceedings and the different steps ordinarily taken in civil actions to render the provisions made as to costs in the latter cases intelligently applicable to the proceedings in the former. That can only be done by assimilating them in substance, even though it cannot be done in name. That seems to have been the governing idea in the enactment of this law. And following that course the writ of certiorari issued in this case must, for the purposes of costs, be regarded as the summons in a civil action. It is the commencement of the proceeding. The return, when made, constitutes the answer and frames the issue, upon that the issue is heard, tried and disposed of as an issue of law would be in a civil action. That would entitle the relator to the same costs as are provided for proceedings before and after notice of trial in civil actions, and to the same fee for trial as has been fixed for the trial of an issue of law. The adjustment made in this case must accordingly be set aside, and a further adjustment directed in conformity with this construction of the law. No costs of this motion will be allowed to either party.