35 A.D. 35 | N.Y. App. Div. | 1898
Lead Opinion
As a general rule it is the duty of the Special Term, upon the return of a remittitur from the Court of Appeals, to enter exactly the order or judgment which that court directs, and neither add to, nor take away from, such judgment or order. (McGregor v. Buell, 1 Keyes, 153; Matter of Prot. E. Pub. School, 86 N. Y. 396.)
Under those decisions, where nothing is said as to costs, none should ordinarily be given by the Special Term in rendering its judgment upon the remittitur.
The order appealed from should, therefore, be affirmed.
All concurred, except Parker, P. J., and Merwin, J.
Helck v. Reinheimer (14 N. Y. St. Repr. 465) was an appeal from an order refusing to set aside a taxation of costs, the General Term holding that a party beaten below and succeeding in the Court of Appeals in an equity action ought to be permitted to apply in the Supreme Court for costs. The Court of Appeals in the same case (121 N. Y. 663) dismissed the appeal in order to allow the Supreme Court to pass upon the question of costs.
Dissenting Opinion
The Special Term, as it seems to me, had no authority to award to the present respondents the costs of the original trial and of the appeal to the General Term.
The case did not come to the Special Term for a new trial. None
“ And it is further ordered, that this cause be and the same is hereby remanded to the said Court of Appeals for further proceedings not inconsistent with the opinion of this court.”
This mandate or judgment did not give to the successful party the costs in the Court of Appeals, as that court evidently held on the passage through it of the remittitur. If the expression “ with costs ” did not include the costs of the Court of Appeals it certainly did not include the costs of the lower court. The opinion referred to in the mandate gave no directions as to costs.
The judgment of the State Supreme Court was not reversed or affected except in certain particulars. This is expressly stated in the memorandum of the United States Supreme Court of May'31, 1898. That memorandum states what those particulars were, and the matter of costs in the State Supreme Court was not one of them. The question of costs in that court was not opened or disturbed. So I think the Special Term had no power over it.
The order of the Special Term, so far as it awards the costs of the trial and of the appeal to the General Term, should be reversed.
Pabkeb, P. J., concurred
Order affirmed, with ten dollars costs and disbursements.