In re Board of Street Opening & Improvement

Van Brunt, P. J.:

The petitioner acted as attorney for the respondent, appellant, John Sehreyer, in proceedings for the extension of Lexington avenue through lands, amongst others, owned by said Sehreyer. The petitioner applied to the court for an order that he be paid the amount of compensation agreed upon out of an award made for the property of- said Sehreyer. A reference was ordered to hear . and report. On the coming in of the report an order was made directing the payment to the petitioner of the sum agreed upon out of the fund in court, with costs. Upon appeal to the Appellate Division this order was reversed, with costs and disbursements to be taxed, upon the ground that the court below was without jurisdiction ; and an order was entered thereupon, reversing the order of the court below, with costs and disbursements to be taxed, and further ordering that the proceedings be dismissed.' The said Sehreyer thereupon presented the bill of costs for taxation to the clerk as in an action, claiming the costs of an action in the proceedings in the court - below, and also the costs of the appeal. The clerk declined to tax the costs for the proceeding in the court below, and taxed the costs upon the appeal, allowing costs and disbursements as upon a case made. A motion was made upon the part of Sehreyer for .a retaxation of these costs, and a motion was also made upon the part of the petitioner for a retaxation. These motions were denied, and an order was entered from which both parties appeal.

It seems to be clear that the clerk was right in refusing to tax costs in the proceeding in the court below, because no such costs have been állowed by any adjudication in any court. The order as entered simply dismissed the proceeding. There was no allowance of costs, and hence there was no authority for the clerk to tax any.' Costs upon the appeal were allowed by the order of the Appellate Division and such costs were properly taxed ; but the disbursements in respect to a casé were clearly improper, because such an appeal is not heard upon a case, but upon copies of the papers used in the court below, which are certified to it by the clerk of that court,. unless the parties stipulate as to the correctness of such copies. Therefore, the items for the making and serving a case of more than fifty folios ' and the disbursements for stenographer’s miriutes for case were clearly improper, and should not have been allowed.

The papers before us seem to show that' the appeal was argued upon the first term that it. was upon the.calendar of the Appellate Division. Hence, there was no ground for the taxation of term fees.

We think, therefore, that the order appealed from, so far as it denies the motion of Schreyer for a retaxation, should be affirmed; and so far as it denied the motion of the petitioner for retaxation it should be reversed, and the costs should be.retaxed in the manner hereinabove indicated, without costs to either party..

Barrett, Rumsey, Patterson and O’Brien, JJ., concurred.

Order, in so far as it denies motion of Schreyer for retaxation, ■ affirmed; and in so far as it denies motion of petitioner for retaxa-. tion, reversed, and the costs ordered to be retaxed in the manner indicated in the opinion, without costs to either party.