Fitch v. Hay, 98 N.Y.S. 1090

Fitch v. Hay

98 N.Y.S. 1090 | N.Y. App. Div. | 1906

Smith, J.:

In People ex rel. Steward v. Railroad Comrs. (160 N. Y. 212), Chief Judge Parker, writing for the Court of Appeals, says: “ It is the general rule that a court or board exercising judicial functions by permission of some statute, has no interest in maintaining its determination, and, therefore, can neither appeal from an order of the court reversing the proceedings, nor be heard on the appeal.” Within this rule of practice it is difficult to see what interest these appellants have in reversing this judgment upon the merits. They are not affected whether the judgment stands or falls. The parties aggrieved by the judgment are the claimants' whose bills have been found illegal ]and their payment enjoined.

By the judgment, however, these appellants are charged with upwards of $250 of costs. To review the equity of that charge they have a standing' in cotirt upon this appeal.

If this question could have' been raised by a writ of certiorari, issued at the instance of the plaintiff, under the authority cited these appellants would not be interested in contesting the issues upon that writ. If the charge had been made that the audits were illegal, simply, the appellants could well have been charged with costs for making a contest at the Trial Term. They were charged, however, by plaintiff’s complaint as having acted fraudulently and in collusion with these claimants. After having made this charge in liis complaint it does not lie with the plaintiff to say that the defendants improperly took issue with the charge made. On this issue, the only one in which they were in fact interested in any way in the trial court, these appellants succeeded. The referee -has *738found that their acts were all in good faith and without fraud. Under these circumstances we are of opinion that they should not have been charged with the costs of this action. The judgment should,, therefore, be modified by striking out the provision charging them with the costs of the action, and as so modified affirmed. We are of opinion that, neither party should have costs of this appeal. This plaintiff acted not for himself so much as in behalf of the people whose representative he was. He was the supervisor of the town. He warned the town board of the illegality of some, at least, of these claims, and had substantial ground for his action. The appeal of the town board was from the whole judgment so that upoh this appeal he is required to defend the judgment in each and every particular. The modification of the judgment, therefore, indicates only partial success for the appellants, which, as we have stated, should not in our judgment, carry costs of the appeal. This affirmance of the judgment as modified should be without costs to either party.

All concurred, except Parker, P. J., not voting.

Judgment modified by striking therefrom the provision charging defendants with costs, and as thus modified affirmed, without costs to either party.