The motion for costs is founded upon the 6th subdivision of the 307th section of the code. It is supposed by the defend*75ant’s counsel that the costs specified in that subdivision are recoverable upon appeals in the cases mentioned in section 349, and in such cases only. If this were so, I do not perceive why the defendant would not be entitled to the costs he demands. But I have just decided in Wilson agt. Allen, (ante, page 54,) that the clause in the 6th subdivision, upon which the defendant relies, is repugnant to the other provisions in the code relating to the same subject, and- must be rejected.
The only allowance for costs provided by the code upon an appeal under the 349th section is, I apprehend, under the 315th section. In Van Wyck agt. Alliger, 3 Howard’s Pr. R. 292, it was held that the rehearing of a motion was, within the meaning of the 270th section of the code, corresponding with the 315th section of the amended code, a motion; and the opinion was intimated that the same construction would be given upon appeal. I think such an appeal is within the definition of a motion contained in the 401st section. But the costs upon a motion are in the discretion of the court deciding the motion; and as none were awarded upon the decision of the appeal, none can be allowed. The motion is therefore denied, but without costs.