97 N.Y. 606 | NY | 1885
The appeal in this case is taken from an order of the General Term reversing an order of the county judge, with costs. The order of the county judge was made in a special proceeding instituted to punish the appellant for an alleged contempt in violating the injunction order issued by him in supplementary proceedings, and denied the relief asked for by the motion. Upon appeal the General Term reversed this order, with $10 costs and printing disbursements, and remitted the matters involved in the motion to the county judge to proceed against the defendant. This determination of the General Term was not final, and is, therefore, not only unappealable to this court upon any question affecting the merits, but the Code expressly denies us jurisdiction to review the subject-matter of the order. (§ 190, subd. 3; Roe v. Boyle,
It would seem to follow necessarily from this fact that when costs are awarded by such an order, and depend upon the conclusion reached upon the merits of the motion, the question as to whether they are properly imposed or not is not reviewable, and that this court cannot consider the propriety of the order even so far as it awarded costs. Such a review could only be had and properly determined after a consideration of the merits *609
of the controversy, and we should thereby indirectly assume a jurisdiction which the Code has expressly denied to us. (Fredenburgh v. Biddlecom,
The general rule in courts of equity did not formerly allow an appeal or rehearing in respect to costs alone, unless they constituted a part of the relief sought by the bill, or were erroneously charged upon an estate or fund, or when the appeal presented a mere question of statutory regulation in respect to their allowance or denial. (2 Madd. Ch. P. 762; 2 Dan. Ch. Pr. 1463, 1466; Travis v. Waters, 1 Johns. Ch. 48; Eastburn v.Kirk, 2 id. 317; Rogers v. Holly, 18 Wend. 350.) This rule was so strictly adhered to that the courts would not permit it to be evaded, by coupling the appeal for costs, with another ground which was unfounded, for the mere purpose of giving color to the appeal for costs. (2 Dan. Ch. Pr. 1466.) The wisdom of these rules and their salutary nature cannot be questioned, for the continuation of a litigation with respect to its mere incidents, after its merits have been disposed of, is contrary to sound public policy and the maxim: "Interest reipublicæ ut sit finislitium."
It has, however, been frequently held that the question of costs in legal actions, and proceedings, affects a substantial right, and is reviewable in this court whenever it is legitimately before us, unless their allowance was discretionary. (Sturgis v. Spofford,
The appeal should be dismissed.
All concur.
Judgment accordingly.