The judgment in this case was irregular and unauthorized. The general term had not awarded costs, and it- was irregular to insert them in the record without a -special application to the court. That application should also have more properly been made to the general term. That was the tribunal that disposed of the case and had the right to dispose of the costs. In ordinary cases their omission to do so would be equivalent to a refusal to give costs. But there *348would be no objection perhaps to bringing the matter by motion to the notice of the court, as the omission might have been inadvertent. Still, in cases of this description, I am not prepared to say that the court at special term is without jurisdiction. It is the supreme court, just as much as the general term. Ordinarily it is the appropriate forum for hearing special motions. And even in cases disposed of at general term, although it has been held more seemly to address the general term, it has been held to be not improper to move at special term. (Corning agt. Powers, 9 How. Pr. R., 54.)
In the particular class of cases now under consideration, if they fall within section 318 of the Code, the award of costs, as in cases against executors or administrators, may perhaps be regarded as more appropriately the subject of a special application to the court, after the litigation is otherwise closed, than of a mere incident to the decision of general term. I am not therefore prepared to 'deny jurisdiction in the premises to the supreme court. The motion at the special term, so far as I am able to judge by the papers handed up, from a notice without date, and an affidavit without verification, was on behalf of the county judge and referees alone, (not including Jewett,) “ for a rule or order setting aside the entry of judgment for costs and disbursements, and the adjustment of costs and disbursements on said certiorari.” The attorney of the adverse party, on an affidavit apparently used on that motion, swears “that it was understood between deponent and said Clute, (defendants’ attorney,) at the time of said taxation, and previous thereto, that this question, viz: whether the relator was entitled to costs, and if so, against whom should be submitted to this court by his making this motion.” I think the judge at special term acted upon the assumption that such was the fact; and this being so, and there being no want of jurisdiction, I think he was fairly enough in possession of the case to *349make the proper order ; and the remaining questions are whether his order was a proper one, and whether the same is appealable.
I discover no difficulty in the question of power to award costs against Jewett. He was in every practical sense a party to the proceeding. He was the man over whose lands the private road was applied to be laid out. He litigated the question before the jury who passed upon the necessity of the road. He appealed from the decision of the commissioners laying out the road. He procured the determination of the county court and referees reversing the action of the commissioners. He probably had no notice (notice not being usually given) of the application for the common law certiorari. He appeared not only in fact but in name by attorney, in the proceedings subsequently. He litigated the matter on the return to the certiorari, and he was defeated. He was, in my opinion, not only a party to the proceeding in every practical sense, but the only proper party against whom, if against any body, costs should be awarded. And perhaps it was a proper case for costs. He had litigated the matter from beginning to end, and he was unsuccessful. He was apparently defeated finally on the question of jurisdiction, having appealed from the action of the commissioners in a case not warranted by law. The question may have been somewhat new and possibly doubtful. There were considerations in favor of both views of the question, and I do not feel disposed for myself to interfere with the judicial discretion exercised by Mr. Justice Goulh, at special term, in the award of the costs. I am not sure that his action, independent of the question of power, is reviewable, and I think it better not to give too much encouragement to appeals, bringing in review simply matters of fact and of discretion. The insertion of the costs in the judgment originally was, it is true, unauthorized, but the order of the *350• special term, afterwards, allowing it to stand, cured the error, and was equivalent to an original authority.
After the decisions of Haviland agt. White, (7 How., Pr. R., 157,) and The People agt. Flake and others, (14 id., 528,) it seems to me we should treat section 318 of the Code as embracing cases of this description, and if so, that section contemplates that costs shall be awarded against somebody. I have some doubt whether a judgment is the proper climax to a litigation in a special proceeding, and should have been inclined to think that an order reversing the action of the referees would have been the more appropriate mode of terminating the proceedings. As that question was not apparently discussed before or decided by the special term, I scarcely think we ought to reverse the order for that reason, and I do not see any substantial objection to allowing the party to enforce the collection of the costs by judgment and execution. I regard the order therefore as substantially right, and think it should be affirmed, but without costs.