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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
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, 125 N.Y. 106
-108.) As no costs for proceedings in the state courts were allowed to the respondents by the Federal court, and none were allowed by this court on the passage of the mandate through it, it follows that their right to the costs in question must depend upon the award made by the order of the Special Term when the mandate and remittitur were presented to it. Thus we reach the question as to the power of the Special Term to award costs under the circumstances of this case. Our review is confined to the question of power, for we have no control over the question of discretion in exercising the power. We think no such power exists. There is no statute which expressly confers it and none from which it can fairly be implied, for it is opposed to the spirit of those provisions of the Code which govern the award of costs. (Code Civ. Pro. §§ 3228-3250.) There is no flexibility in the rule relating to costs in actions at law, for nothing is left to the discretion of the court. In actions in equity, however, "the court may, in its discretion, award costs to any party, upon the rendering of a final judgment." (Id. § 3230.) This does not extend to the allowance of costs to both parties, for the same services, in the same court. Costs are certain allowances authorized by statute to reimburse the successful party for expenses incurred in prosecuting or defending an action or special proceeding. They are in the nature of incidental damages allowed to indemnify a party against the expense of successfully asserting his rights in court. The theory upon which they are allowed to a plaintiff is that the default of the defendant made it necessary to sue him, and to a defendant, that the plaintiff sued him without cause. Thus the party to blame pays costs to the party without fault. It would, therefore, be unreasonable to hold that the statute
impliedly confers the power to award the same costs in favor of and against each party, not only because it would be the same in effect as allowing costs to neither, but also because it violates the theory upon which costs are allowed. Victus victori inexpensis condemnanandus est. While costs are frequently allowed to both parties, or to many parties, payable out of a fund, "the general rule is that the successful party, although he may be denied costs, never pays them." (Couch v. Millard, 41 Hun, 212-215; Dan. Ch. Pr. 1483; 2 Barb. Ch. Pr. 323; 5 Encyc. Pl.
Pr. 186.) The plaintiffs succeeded so far as the chief object of the action is concerned, but having obtained certain relief to which they were not entitled the error was corrected by the Supreme Court of the United States, with costs to the defendants in that court, which are not contested. As the plaintiffs succeeded upon the main controversy, and the award of costs in their favor on that account still stands, the same costs cannot be awarded to the defendants without subverting the general rule governing the subject. The plaintiffs, for instance, having recovered the costs of the last appeal to the General Term by a judgment which has not been disturbed in that respect, cannot be deprived of their right to those costs, for the judgment is an adjudication that they were entitled to the costs of that court and that the defendants were not. So long as the judgment stands it is conclusive upon the question. An award of the same costs to the defendants would, in effect, deprive the plaintiffs of the benefit of their judgment without their consent. The Code, as we read it, does not permit an award to the defendants and against the plaintiffs of the identical costs which, by a valid judgment rendered upon appeal in the same action, the plaintiffs have already recovered against the defendants.
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
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.