Opinion
September Term, 1903.
Curtiss, Arms Keenan, for the motion.
Barna Johnson, opposed.
The order which we are now asked to resettle was made on an appeal taken from a final order in a special proceeding, and the provisions of section 3240 of the Code are, therefore, applicable to it. Under such section the question whether the appellate court should or should not award costs to the prevailing party was one resting in its discretion. When so awarded the section itself provides that they shall be at the rates allowed upon an appeal from a judgment taken to the same court and in like manner. When, therefore, this court determined that costs should be awarded to the appellant, and so directed in its order of affirmance, it was not necessary for it to specify the rate nor the items which were so allowed; they were to be ascertained in the same manner that costs on appeal from a judgment are ascertained, viz., by taxation. Neither was it necessary to specify that disbursements as well as costs were awarded, for, under the provisions of section 3256 of the Code, the award of costs carries with it certain disbursements therein particularly specified, and so far as they are therein specified the appellant may tax them as a part of the costs which this court awarded him.
The authorities relied upon by the respondent's attorneys and by the surrogate are in cases where the order of affirmance was made upon an appeal taken from a mere order incidental to the proceeding, and in no sense a final one, and what is said in those cases has reference to such situation only. In those cases section 3236 and subdivision 3 of section 3251 of the Code control.
The order of this court, as handed down, therefore, expressed all that was necessary to authorize the appellant to tax his costs and disbursements as on appeal from a judgment in an action, and this application to amend or resettle such order is not necessary and must be denied. On its face it is authority to the surrogate of Delaware county to tax the costs as above suggested and to authorize the surrogate to make such order as was necessary to give effect to the amount so fixed.
The appellant having made the proper claim and been denied it by the respondent, no costs are allowed against him on this motion
All concurred.
Motion denied, without costs to either party.