155 N.Y.S. 593 | N.Y. Sup. Ct. | 1915
This is an equitable action and after trial had in the Special Term of this court judgment was directed and thereafter entered in favor of the
Prom the papers now before me and the statements made by counsel on the argument, it is clear that no judgment has as yet been entered in this court upon the mandate of the United States, Supreme Court.
But the main question here presented is one of
It will be seen that the judgment of reversal by the United States Supreme Court was not with costs-in all courts. The language of the mandate is “ that the judgment of the said Supreme Court in this cause be, and the same is hereby, reversed with costs; and that the said respondents, Supreme Council of the Boyal Arcanum, et al., recover against said appellant three hundred and fifty-seven and seventy one hundredth dollars for their costs herein expended and have execution therefor.”
This court has no authority to add to or take away from the mandate so remitted to it; its sole duty is to enter exactly the order and judgment directed by the United States Supreme Court. A new trial was not ordered, none has been had, and the only function of this court is to order the entry of a postea as directed by said mandate.
It is well settled in this state that where the Court of Appeals affirms or reverses with costs that means
The Supreme Court of the United States did not award costs to defendants in the Court of Appeals of in the Appellate Division, and this court has no authority to award costs to a successful litigant in either of those appellate courts. The award of costs depends upon statutory authority conferred. •
As I read the opinion and mandate'of the United States Supreme Court, the language and intention of that court is clear. It was that the successful defendant should have costs in that court only and that as such costs they recover the sum therein stated. Rule 37, 30 U. S. Rep. 724.
My conclusion therefore is that defendants are not entitled to costs other than expressly awarded by the United States Supreme Court in and by its mandate, and thus the directions of such mandate will be obeyed. Motion that judgment be entered is granted, but in accordance with the views above expressed.
Ordered accordingly.