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 *37had been granted. The only power the Special Term had was to award judgment as the highest court had directed. The mandate of that court was “ that the judgment of the said Court of Appeals in this cause be and the same is hereby reversed, with costs; and that the said appellants recover against the said respondents Aaron R. Stevens et ah, one thousand and forty-seven dollars and seventy cents for their costs herein expended and have execution therefor.
“ 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.