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.
*36The direction of the Court of Appeals in this matter is rather . indefinite ; it directs that the judgment he rendered, without costs in that court, but it also provides that the mandate of the Supreme Court of the United States be annexed to the remittitur, and the proceedings thereupon be remitted to the Supreme Court of the State of New York, for proceedings upon such remittance. This, I think, makes the mandate of the Supreme Court of the United States a part of the remittitur of the Court of Appeals, and the mandate of the Supreme Court of the United States recites that the judgment of the Court of Appeals be “ and the same is hereby-reversed, with costs.” It then proceeds to provide that the appellants, in the Supreme Court of the United States, recover against the respondents, Aaron R. Stevens and others, SLOéTUO for their' costs herein expended. The first, I take it, means costs generally in the case, and the last an award and statement of the costs of the appellants in the Supreme Court of the United States; and the judgment being reversed, with costs, and the direction of the Court of Appeals being that the Supreme Court render judgment conforming to the said mandate, the Special Term, I think, was correct in ordering a judgment to be directed, with costs in the courts of this State, except in the Court of Appeals.
The order appealed from should, therefore, be affirmed.
All concurred, except Parker, P. J., and Merwin, J.
Landon, 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.