The clerk refused to tax the defendant’s costs, because the order of the General Term expressly directed that the action be dismissed without costs. Nothing was presented to the clerk to show that this order was coram non juctice. It was the duty of the clerk, we think, to respect the order of the General Term, and of the defendant to have moved to correct the same by application to the General Term; and the Special Term did right in so holding. The order of dis*396missal was one which the General Term was not bound to make in disposing of the appeal. It, however, did so, conditionally; that is to say, without costs. If the .defendant did not choose to accept the order with the condition that the dismissal should' be without costs, he should have moved the General Term for a modification of the order, or for some other disposition of the case. By accepting the order, he should be held to consent to the condition.
If this be not so, however, the case is one within section 317 of the Code. The plaintiff was trustee of an express trust within the meaning of that section ; and the attempt on this taxation, was to charge him personally with costs, where the court had not ordered that to be done. If the defendant is entitled to costs at all, they are chargeable only upon, or out of, the estate or fund represented. This ought to be so in this case, because, as shown in the opinion of the court (Olcott v. McLean 10 Hun, 277), the plaintiff was entitled to maintain his action and to recover when the action was brought, but by an act of congress passed while the action was pending, this court lost jurisdiction of the case, and for that reason made the order of dismissal. The power of the court, as was said in the opinion at General Term, to hear and determine the case had been withdrawn. The court for that reason reversed the judgment and dismissed the complaint, but it was distinctly stated, that as such dismissal had become necessary because of the legislation which took effect during the pendency of the action, it should be without costs. There was certainly no bad faith on the part of the plaintiff, which should charge him personally with any costs, and the defendant was not justified in attempting to do so, without first applying for an order of the court under section 317 of the Code, which application would undoubtedly have been denied.
The order appealed from should be affirmed, with ten dollars costs besides disbursements.
Brady, J\, concurred.Order affirmed, with ten dollars costs and disbursements.