By section 306 of the Code, it is provided that costs of an appeal shall be in the discretion of the court, “when a judgment shall be affirmed in part and reversed in part.” In pursuance of that section, the General Term had the right as well as power to exercise its discretion in respect to the costs of the appeals in this court.
The order of the General Term declares the affirmance and reversal to be “with costs of appeals to the appellants.” That order is binding, and controls, until modified ; notwithstanding an expression in the opinion of Justice Smith inconsistent with it.
The “appeals” referred to in the order, obviously, were the appeals to the Supreme Court. This construction is necessary, because it is only such costs that the section provides shall be in the discretion of the court. {Code, § 306.)
The appellants, in virtue of the order made by the General Term, are entitled to tax the costs of appeals to the General Term, with the disbursements made upon such appeals.
The plaintiff insists that only costs of appeal from the judgment should be allowed. But it has been held that costs ’ of appeal from the order may also be given, as well as costs on appeal from the judgment. The cases are so distinct and clear, upon the question, that at Special Term it cannot be regarded as an open question; and the costs and disbursements of the appeal from the order, and of the appeal from the judgment, must be allowed to the appellants ; i. e., $60 on appeal from the order, and $60 on appeal from the judgment, and the disbursements made in the Supreme Court. (Ahern v. The standard Life Insurance Co., 40 How. 190. Gray v. Hannah, 3 Abb. N. S. 183. Harper v. Allyn, Id. 186.)
The result above stated gives full effect to the order made by the General Term, and embraces all the items *529covered by the discretion as exercised by that court pursuant to section 306 of the Code.
[Herkimer Special Term, September 2,1873.Hardin, Justice.]
The defendants improperly included in the taxation of costs the item of $10 “costs, motion for new trial.”
1. This item is not given by the order of the General Term.
2. It is by the order of the county court provided that the plaintiffs shall recover $10 costs upon that order.
3. It is not an item given by statute, and a party’s right to costs of a motion rests upon the order, not upon any statute; as costs of motions are in the discretion of the conrt. (Code, § 315. 4 How. Pr. 283. Stevenson v. Pusch, 40 id. 91.)
These must be stricken from the bill, upon a re-taxatian by the clerk of Lewis county.
The costs of the justice’s court, and the costs of the county court, were improperly allowed to the defendants by the clerk. The' General Term order did not award them to the defendants. At the time the judgment was entered in the county court the plaintiffs were entitled to recover costs and disbursements. The reversal of part of the judgment has not changed the plaintiffs’ right to costs of the county court. The judgment given by the county court remains, except so far as it has been modified by the General Term; and, as before shown, the extent of that modification is as to one cause of action.
The discretion exercised by the General Term, in respect to costs, did not refer, to, or affect, the rights of the parties in respect to the costs and disbursements incurred in the justice’s court, and in the county court.
An order for re-taxation, to take place upon the principles stated in this opinion, must be allowed.
As neither party is entirely successful, on this motion, no costs are allowed upon this motion to either.