Hall v. Emmons , 40 How. Pr. 137 ( 1870 )

Jones, J.

This is a motion by plaintiff for a re-taxation of a bill of costs of the defendants.

So far as the papers show the only objection urged before the taxing officer to the allowance by him, allowed against the plaintiff, is that only $10 can be allowed as costs of appeal to the court of appeals.

This is the only point presented for my consideration on this motion, which is in the nature of an appeal from the clerk’s taxation.

It is urged that the appeal was noticed for hearing, and heard as a motion on a motion day of the court of appeals, pursuant to chapter 741 of the laws of 1870, and therefore, motion costs only can be allowed, and consequently the words u with costs” contained in the remittitur must be intended to be such costs as are allowed by law to be given on the decision of a motion.

I think, this view is incorrect.

The act of 1870, gives a right of appeal.

The Code, (section 307,) regulates the costs to be allowed on an appeal to the court of appeals.

That court has held that this regulation applies as well to an appeal from an order, as from a judgment, and further than this that of the dismissal of appeal from an order on the ground of its non-appealability, after the appeal has been heard and submitted on the merits. ( White agt. Anthony 23 N. Y, 164.)

It does not seem to me that the fact that the act of 1870, provides that appeal authorized by it may be heard as a motion on any regular motion day, affects the question.

An appeal is taken, it is argued and decided. That it was heard on a motion day as a motion, instead of being placed on the general calendar and heard when reached in its regular order, does not alter the fact that the appeal itself is heard and argued.

The act of 1870, simply provides a more expeditious mode of hearing the appeals given by it, than is provided for hearing of others.

Motion for retaxation denied, but as the question is new, without costs