(1.) The court having ordered a judgment of reversal without costs to either party, could the appellant enter a judgment of reversal with costs 1
The court had no right to reverse the judgment without costs to either party. The Code (§ 368) provides, that if the judgment be reversed, “ costs shall be awarded to the appellant.” This section is so plain that it needs no adjudication to interpret or expound it. But it has been decided that the reversal must be with costs. (See Logue agt. Gillick, 1 Smith, 398; Hahn agt. Van Doren, 1 id. 411; Main agt. Eagle, id. 621.)
But-although the court erred in reversing without costs, the clerk had no right to correct the error, or to disregard the decision of the court in the entry of judgment. He is a mere clerical *369officer of the court, and has no right, in any case, to reverse, modify, or review the decision of the court. If the court should, in any case on appeal, strike out a portion of the • damages recovered by a party below, althoughthere was clearly no error in the judgment appealed from, the clerk could not insert, in the judgment entered by him, the damages so stricken out.
Section 279 of the Code provides, that “ the clerk shall keep, among the records of the court, a book for the entry of judgments, to be called the judgment bookand § 280 provides that u the judgment shall be entered in the judgment book, and shall specify clearly the relief granted, or other determination of the action.” According to this last section, the clerk, in the entry of judgment, should follow the decision or determination of the court.
The relief granted in this case, or more properly, the determination of the action,, was a reversal of the judgment without costs, and the clerk should have entered the judgment accordingly, and had no right to enter a judgment of reversal with costs.
(2.) Could the clerk properly insert the costs, in the entry of judgment, without notice to the other party 1
All the cases agree that it is an irregularity; but as to the effect of the irregularity the cases differ. Justice Basculo, in Mitchell agt. Hall, (7 Howard, 490,) held, that the adjustment of costs, and all subsequent proceedings, should be set aside. Justice Gridley, in Dix agt. Palmer, (5 Howard, 233,) held, that the taxation of the costs would be set aside, unless they were retaxed on due notice, but that the regularity of the judgment would not be affected. Justice Dean, in Van Wyck agt. Reid, (10 Howard, 366,) granted a motion to strike out the costs entered in the judgment, and ordered a re-adjastment. Justice Harris held, in Potter agt. Smith, (9 Howard, 263,) that “ although it is irregular for the clerk to insert, in the entry of judgment, the plaintiff’s costs without notice of taxation when the defendant has appeared, yet that will not affect the entry of judgment, if notice of re-taxation be given and the entry of *370judgment corrected, if any correction is necessary, in conformity to such re-taxation.” In Stimson agt. Huggins, (16 Barbour, 658,) it is held, “ that the omission of the notice does not affect the regularity of the judgment; and that the only consequence of such omission will be, that the court will' order a re-adjustment of the costs at the expense of the party omitting to give the notice, and to compel such party to pay the costs-of a motion to obtain a re-adjustment.”
Hence, it will be seen that the decisions differ somewhat; but they all agree that the insertion of the costs in the judgment without the notice is an irregularity. I think that the mode ‘ of correcting such an irregularity is very much in the discretion of the court, and should depend on the circumstances of each case. If the costs inserted in the judgment without notice are all right and proper, and if they were so inserted in good faith, and not for the purpose of obtaining any improper or undue advantage over the other party, the court should not, on motion, strike them out. But if the costs are thus inserted, and execution is issued for the purpose of oppressing the other party, and making him costs, the court should strike them out, and set aside the execution; or if it is alleged that the bill of costs adjusted contains improper items, the court should compel a re-adjustment at the expense of the party. . The proper practice is to give the notice; and if it is omitted, as it sometimes is, in order to perfect a judgment immediately after it is due, so as to secure it, notice of re-taxation should be given.
In this case, as there is no allegation that any improper items were inserted in the bill of costs, or that the respondent was otherwise aggrieved by the adjustment without notice, I think the motion should not be granted for this irregularity.
But, for the reasons first stated, I think the motion should be granted. I therefore decide that an order be entered in the clerk’s office of Herkimer county, directing the clerk to strike out of the judgment entered in this action the costs inserted therein, and to conform the said judgment to the decision of the court; and that the appellant pay to the respondent five dollars costs of this motion.