Higgins v. Callahan

J. F. Daly, J.

[After stating the facts as above.]—The plaintiff’s cause of action is based upon the order of the general term of the Marine Court awarding costs against all these defendants and directing taxation by the clerk. The questions raised by the demurrer are: 1. The authority of the general term to impose costs upon two of these defendants, Callahan and Thomas McGuire, who were parties to the motion before the court but not parties to the action, they being merely sureties of the defendant therein and joining with him in a motion to have the judgment marked satisfied. 2. The authority of the general term to direct such costs to be taxed by the clerk. 3. The right to bring action for such costs even if regularly awarded.

The costs awarded by the general term of the Marine Court were upon appeal from an order granting a motion made by Thomas McGuire and John Callahan, joining with Daniel McGuire, the defendant in the action. The two former had submitted themselves to the judgment of the court in applying for relief in a matter in which they had an interest. They were before the court to sustain the order they had obtained at special term. The costs on appeal from the order were in the discretion of the court (Code Civ. Pro. § 3239), and might therefore be imposed upon any party to the application then before the court. This section does not limit the power to impose costs on such of the litigants as are strictly parties' to the action in which the application is made, but gives the appellate tribunal the fullest discretion.

When costs are in the discretion of the court, the decision must specify which party is entitled to costs, but the costs must be taxed by the clerk (Code Civ. Pro. § 3262). This section may be construed to cover the'case before us. On an appeal, the amount of costs is uncertain, because “ the reasonable expenses of printing the papers for a hearing ” are to be included in such costs (Code Civ. Pro. § 3256), and the amount to be allowed for such reasonable expenses is to be ascertained on proofs and should be adjusted by the clerk on proper notice. This practice was strictly followed here. The general term, in reversing the order obtained by the defendants, satisfying the judgment against Daniel McGuire, awarded costs to the appel lants, the plaintiffs in that judgment, and against the respondents Callahan, Thomas McGuire and Daniel McGuire, and directed the clerk to tax such costs. This was done on notice, and the amount adjusted by the clerk at $55.37. We cannot say that this included more than $10 on reversal of the order, and necessary disbursements for printing; if it did, the respondents on that appeal had their remedy to review the taxation if it were incorrect as to amount, but they made no motion in respect of it.

Those costs were awarded on a motion made after judgment, and no process is provided for collecting them. The parties entitled had therefore an action (McDougall v. Richardson, 3 Hill, 558). This authority will not, at this day, be questioned No subsequent case cited by appellants is in conflict with it, and the Code of Civil Procedure is silent as to the mode of collecting costs awarded in a summary motion made after judgment.

The demurrer to the complaint was not well taken, and the general term of the Marine Court properly overruled it and ordered judgment in favor of plaintiff on his appeal from the judgment against him. The final judgment of the Marine Court entered by direction of the general term is appealable to this court. The last point taken by appellants, that this is an appeal from an order, is therefore not well taken. Their notice of appeal states that they appeal from the judgment and the order.

The judgment and order should be affirmed, with costs.

Van Brunt, P. J., concurred

Judgment and order affirmed, with costs.