A motion was subsequently made to amend the remittitur as to costs, upon which the following opinion was written: The principal appeal, and the only one which the court had occasion to consider, was that of the plaintiffs from the judgment dismissing the complaint. The cross-appeals of the parties from so much of the judgment of the Supreme Court as refused to give construction to the will and adjudicate upon the rights of the parties thereunder, were only important in the event that this court should decide that this complaint was erroneously dismissed; the questions involved in those appeals could only be considered upon a reversal of the principal judgment of the court below — that is in case the plaintiffs should succeed upon their main appeal. The plaintiffs, failing in that, the other appeals were unimportant, and the defendants were successful in the litigation. *Page 238
The court adjudged that, under the circumstances, the plaintiffs should be charged with the costs of the litigation in this court. It all resulted from the appeal of the plaintiffs from the judgment of dismissal, the other appeals being mere incidents of and made necessary by the principal appeal. By inadvertence of the clerk merely, this result was not clearly expressed in the remittitur.
The learned counsel for the plaintiffs is in error in supposing that the costs of all the appeals were not in the discretion of the court; this belonged to the class of actions in which, by the Code (§ 306), costs are within the discretion of the court. In actions in which, by that section, costs may be allowed or not, in the discretion of the court, the discretion exists, and may be exercised in every stage of the action. The further provision, that in certain cases mentioned, the costs of an appeal shall be in the discretion of the court, was intended to extend the discretion to cases in which, but for that provision, costs would have been recoverable by the prevailing party under sections 304 and 305 of the Code. Montgomery County Bank v. The Albany CityBank (3 Seld., 459), was one of that class of cases; and but for this special provision the court could not have exercised the discretion which they did as to the costs of the appeal.
This court has invariably exercised a discretion as to the costs of appeals in actions usually known as equitable actions, or, in other words, such as are not embraced within section 304 of the Code.
The motion must be, therefore, granted, and the remittitur so amended as to give the defendants, respondents in the plaintiff's appeal, costs of such appeal, and denying any other costs to either party as against the other upon the appeals.
All concur.
Ordered accordingly. *Page 239