The only provision relating to costs in this proceeding is contained in section 159 of the Village Law, and is as follows: “.All proceedings subsequent to the appointment of the commissioners shall be taken in accordance with the provisions of the Condemnation Law, so far.as applicable, except that the commissioners in fixing their award must make an allowance for benefits, if any, derived by the claimant from such improvement. The amount agreed upon for such damages or the award therefor, together with the costs, if any, allowed to the claimant, shall be a charge against such village. Unless the award of the commissioners in favor of the claimant shall exceed the amount of the offer to settle or compromise such claim, he shall be liable for all the costs of the proceeding.”
It is plain from this provision that thb allowance of costs in this case, for all proceedings prior to the appointment of the commissioners; was in the discretion of. the court, under section 3240 of the Code of Civil Procedure. ...
It is also apparent that under the provisions of section 3372 -of the Code, which regulate the costs* in a condemnation proceeding, the petitioner was entitled to recover costs of th% proceeding, subsequent to the appointment of the - commissioners, *51to be taxed by the clerk at the same rate as is allowed, of course, to the defendant when he is the prevailing party in an action in the Supreme Court. ' I am, therefore, unable to conceive any reason why the appellant was not entitled to have her costs retaxed by the clerk at $276.56, the amount awarded in the final order in the proceeding.
With respect to the force and effect of the order denying the motion for a new taxation it is only necessary to say that it did not affect the* appellant’s right to the costs awarded by the final order. (Hewitt v. City Mills, 136 N. Y. 211.) It was entered upon notice, at the conclusion of the proceeding, and was a judicial determination of a substantial right. II ⅛ true, as the respondent contends, that a court possesses inherent power to correct a mistake or clerical error, but this rule has no application in- a case where there is no allegation, or pretense of a mistake or omission in respect to the facts or the law. It follows that the order of the Special Term should be reversed, and that all the items contained in the bill of costs, amounting in the aggregate to the sum of $276.56, should be allowed, with ten dollars costs and disbursements.
All concurred.Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.