168 N.Y. 560 | NY | 1901
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *562
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *563 As the mandate of the Supreme Court of the United States makes the opinion of that court a part of its judgment, both the mandate and the opinion must be read together in order to learn what the court did. When thus read it is clear that the judgments of the state courts were left undisturbed in substance and reversed or modified only to the extent of striking out the injunction and the order of reference, both of which were incidental to the main relief granted. The plaintiffs held the substantial part of their judgment, but failed to hold two remedies provided to aid in enforcing it. Their judgments for costs against the defendants in the state courts were not disturbed by the Federal court, which did nothing except to strike out the remedies above mentioned and award certain costs to the plaintiffs in error.
The respondents claim that the award of costs to them was general and entitled them to recover from the appellants the same amount of costs for the same services in the same courts which the appellants had previously recovered against the respondents and which the Supreme Court of the United States allowed to stand. This view has thus far prevailed, but against the dissent of two of the learned justices of the Appellate Division. We have already held otherwise. When the record passed through this court on its way from the Supreme Court of the United States to the Supreme Court of the state we directed the latter "to render judgment herein in conformity with the said mandate and the opinion referred to therein, without costs in this court." No motion has been made to modify that order in any respect. Both parties have acquiesced in it, and, as it stands, it is binding not only upon them, but also upon ourselves. It is an adjudication that the Supreme Court of the United States did not reverse or modify, with costs to the plaintiffs in error, generally, but *566 only with costs in that court, for it is obvious that if costs were allowed in any state court they were allowed in the Court of Appeals also.
Costs cannot be taxed unless they have been duly awarded, and they can only be awarded in pursuance of the provisions of some statute. (Equitable Life Assur. Soc. v. Hughes,
If a new trial had been granted by the Federal court, or if there were no judgments for costs in favor of the plaintiffs, standing undisturbed by the action of the various appellate courts through which they have passed, a different question would be presented, but with those judgments in force, we *568 think the Special Term had no power to award the costs under consideration to the defendants. It follows that the defendants are entitled to no costs except the sum of $1,047.70, awarded by the Supreme Court of the United States.
The judgment of the Appellate Division should be reversed, and that of the Special Term modified by striking therefrom all costs to the respondents, except those allowed by the Supreme Court of the United States, and as thus modified affirmed, with costs to the appellants in this court and in the Appellate Division.
PARKER, Ch. J., GRAY, BARTLETT, MARTIN, CULLEN and WERNER, JJ., concur.
Judgment accordingly.