Opinion
June, 1897.
Cantor Van Schaick, for motion.
Perkins Jackson, opposed.
The District Court justice made an order opening the judgment herein, under section 1367 of the Consolidation Act as amended by chapter 748 of the Laws of 1896, which also provides that from such an order "an appeal shall lie as from a judgment." Under the last-mentioned provision the plaintiff appealed to this court, which reversed the order, with costs.
The plaintiff taxed his costs and entered judgment therefor. Upon the taxation before the clerk the defendant objected solely to the item of "$30 costs on reversal by Appellate Term," on the ground that $10 motion costs only were taxable.
In considering the question of how an appeal from an order opening a judgment should be treated we need not look outside of section 1367 of the Consolidation Act, supra, for it is specifically laid down therein that an appeal from such an order shall lie as from a judgment. The act would seem to apply not only to the return of the justice and the subsequent proceedings thereon, but to all the incidents of the appeal, including costs.
The Code makes no distinction as to the amount of costs between an appeal from a judgment and an appeal from such an order. In this respect the statute is similar to the provisions as to costs on appeals from orders to the Court of Appeals, and from the City Court to the Appellate Term (Goodridge v. Connor, 66 How. Pr. 143), and on appeals from orders from inferior courts generally to the Supreme Court. Williams v. Murray, 32 How. Pr. 187; 2 Abb. Pr. (N.S.) 292.
Section 3213 of the Code provides that articles 1 and 2 of title VIII of chapter 19 of that act (which articles relate to appeals from courts of justices of the peace) shall apply to appeals from the District Courts of the city of New York. Section 3067 is the last section of article 2, and it provides that costs on appeal shall be $30 on reversal, and $25 on affirmance. This section applies to all appeals from Justices' Courts, and is not limited to appeals from judgments alone.
The objection made to the $30 was, therefore, properly overruled by the clerk.
We are not called upon to review the other items (Matthews v. Matthews, 14 Civ. Pro. 399; Comly v. Mayor, 1 id. 306) or pass upon any other question of practice that might have been raised as to the regularity of the judgment entered.
Motion denied, without costs.
Present: McADAM and BISCHOFF, JJ.
Motion denied, without costs.