The plaintiffs were the appellants in the Court of Appeals, and, according to the fifth rule of that court, it was their duty to make a case, consisting of a copy of the return of the clerk of the Supreme Court, and the reasons of such court for its judgment, or an affidavit that the same could not be procured; and if the case was voluminous, it was their duty to add an index to the same. Such a case was made and served by the plaintiffs’ attorney in the Court of Appeals prior to the year 1864, when there was no law that gave the appellant in that court any separate or specific allowance or compensation for that labor. But at that time the appellant was allowed a compensation for such services, by the provision that gave him twenty-five dollars “ on appeal to the Court of Appeals, before argument.” At the time the cause was decided *121by that court, the code had been so amended as to allow the appellant thirty dollars for services, before argument in such court, and also twenty dollars “ for preparing and serving a case” in the appeal there. (Laws of 1864, pp. 996, 997; Voorhies’ Code, 8th ed., § 307.)
The authorities cited hy the plaintiffs’ counsel show that it is competent for the Legislature, at any time during the progress of a suit, to create an allowance for services not before provided for, and to increase or diminish or wholly abolish such allowances as existed at the time the suit was commenced ; also that the recovery of costs must be controlled, as to items and the rate of compensation, by the statutes in force at the time when the right to costs is established, or judgment therefor is pronounced. The plaintiffs, therefore, were entitled to costs in this case, according to the Code as it existed at the time the Court of Appeals reversed the judgment of the Supreme Court, and adjudged that they were entitled to a judgment in their favor with costs, or at least when the judgment of the Court of Appeals was made the judgment of the Supreme Court. The Code, at such times, allowed them twenty dollars • “ for preparing and serving a case” in the appeal to the Court of Appeals ; and as that labor was actually performed by them, or their attorney, they were entitled to twenty dollars for such services.
It follows that the order of the special term, appealed from, should be reversed, and the adjustment of the plaintiffs’ costs by the clerk affirmed.
Ordered accordingly.
Present, Parker, Mason, and Balcom, JJ.