Van Wyck v. Alliger

Barculo, Justice.

It seems to me that the order made at the general term plainly disposes of this case. If the order had been silent on the subject of costs it might have left a question whether the costs of the motion should not abide-the result. Under the old practice, there were instances; such as motions to change venue, &c., where the costs abided the eyent of the suit without any special directions. But in this case the order declares that “ no costs are allowed,” and as if to put it beyond all dispute, a former order granting costs, which seemed to have been inadvertently entered, “ is vacated and annulled.” Now, to permit this taxation to stand would be permitting a taxing officer to reverse a decision of the court and allow costs when the court had expressly declared that no costs should be allowed.

It does not remove the difficulty to say, that there is a distinction between interlocutory and final costs. The objection to this allowance lies deeper than that. It is that the taxing officer has no discretion to be exercised, he is not to say whether a party is to have costs or not.. The court only can decide that matter. The case of Savage & Gowen v. Barrow, 4 How. 74, is an authority on this point.

Again, there is another insuperable objection to the allowance of these costs, which would have prevented the court from allowing them if disposed; and which may perhaps explain the “ vacating and annulling” of the order granting costs. The statute does not permit such costs to be awarded. Even under the amended code, no more than ten dollars can be allowed. (§ 315.) And under the law, as it stood at the time of the decision, no costs could be allowed to the defendant on the motion, he being the moving partj*. (Code of 1848, § 270.) Indeed, this very question was decided in the case as it is reported. (3 How. 292.)

It appears, however, from the opinion in that case, that the order was “ to be silent on the subject of costs.” But, in this respect, the order differs- from the opinion, and of course the former must govern. The opinion also states that the defendant would be left “ to tax the costs of both motions in the event of his succeeding in the suit.” This, however, was not made a part of the decision of the motion; and with all due respect to the learned court, I think it could not have been legally. When the statute declares in terms that no costs shall be allowed on a motion, the court has no more power to award the costs of the motion as final costs, than they have to allow them as interlocutory costs. If the costs could be taxed by items as final costs, the very evil which the Legislature designed to prevent would be increased.

The motion must be granted and the sum of $54:93 struck out of the bill. Neither party can have costs of the motion.