The petitioner applied at special term to vacate an assessment for paving Spring street, from Broadway to West street, alleging that the resolution and ordinance of the common council authorizing the improvement were not published prior to their adoption, as required by chapter 1 of the Laws of 1857; and that a previous assessment for paving the same street had been laid upon the petitioner’s property, which was duly paid.
A reference was ordered to take proof of the facts; and, on the coming in of the referee’s report, an order was granted vacating the assessment mentioned, with costs and disburse ments. The amount of the assessment vacated was sixty-three dollars and forty-five cents.
The petitioner proceeded to tax his costs and disbursements, which consisted of the following items, amongst others: Costs of trial of issue of fact, thirty dollars; proceedings before notice of trial, fifteen dollars; costs for proceedings after notice, and before trial, fifteen dollars; referee’s fees, twenty-five dollars; all of which were allowed, notwithstanding the objections of the counsel to the corporation.
It is claimed that the application of the petitioner is a special proceeding under the provisions of chapter 270 of the Laws of 1854, the third section of which declares that in special proceedings, and on appeals therefrom, costs may be allowed in the discretion of the court, and when allowed shall be at the rates allowed for similar services in civil actions. We are decidedly of the opinion that this is not a special proceeding within the purview of that statute.
It involves no issue of fact to be determined in any other *76form or mode than upon a motion, and, under provisions of the C-ode, a judge sitting at special term, to whom thé motion is presented, may make a reference for the purpose of taking proof, or for the purpose of having the persons, whose affidavits have'been presented to him for consideration, examined orally in regard to the statements there made. It is very clear, therefore, that the charge of thirty dollars for trial of issue of fact, for proceedings before notice of trial, and after notice and before trial, were not properly allowed, and should have been stricken out on the objection of the corporation counsel. A discretion having been exercised, which embraces the other items, it is not in our province to interfere with the allowance secured in that mode.
We regard the allowance of costs in proceedings of this character as contrary to the established, and now universal, practice of the judges of this district; and while we feel compelled, under the circumstances of this case, to allow the amount of the costs and disbursements already mentioned, we desire it to be understood by the profession that this is not to be regarded as a precedent in reference to costs to any amount whatever.
The costs thus stricken out could not he granted, upon the proposition that this is the case of a judgment, or resemblance to a judgment in an action, for the reason that no presentation of any claim was made to the chief fiscal officer of the corporation. The statute of 1859 (chap. 262, sec. 2) declares, in express terms, that no costs, fees, disbursements or allowances shall be recovered or inserted in any judgment against the corporation unless the claim upon which the same is founded was presented to the chief fiscal officer of the corporation before the commencement of the action.
We feel constrained, therefore, with the modification suggested, to affirm the order, without costs of appeal to either party.
Davis, P. J., and Ikgalls, J., concurred.