Wood v. Brown

Van Hoesen, J.

This cause was heard at the January term,, 1876, and reversed upon the argument. It was in this court, on appeal from the judgment of a District Court. The indorsement upon the return is simply the word “Reversed.”' The minutes of the clerk of the general term show that the judgment was reversed, without costs against the respondent Brown. Three attorneys, who were present at the argument, swear that the Chief Justice, in announcing the decision of the court, said: “ This case must be reversed, without costs as against Brown.” Four days after, the decision ms made, the counsel for the appellant moved for the settlement of the order reversing the judgment, so that it would appear that costs were awarded to the appellant; but during the January term the motion was not heard. That motion is renewed at this March term, and the facts above stated appear upon the record and by affidavits.

Upon the reversal of the judgment, the appellant became entitled, as matter of right, to costs against the respondent Brown. This court had no power, nor did it deliberately attempt, to deprive the appellant of a right incident to the order of reversal. The announcement that the reversal would be Avithout costs Avas an inadvertence, to Avhi'ch the appellant should at once have called the attention of the court. This he neglected to do, but as he has promptly applied to be relieved from the order vrhich deprived him of the costs which the law declares he is entitled to, it is within the power of the court, in the exercise of its discretion (Code, sec. 174), to grant his application.

The order of the general term will be modified, so that costs against the respondent Brown shall be awarded to Wood, the appellant.

Charles P. Daly, Oh. J., and Joseph F. Daly, J., concurred.

Order modified accordingly.