Opinion
April Term, 1899.
R.L. Pritchard, for the appellant.
Abraham Goldfarb, for the respondent.
Chapter 748 of the Laws of 1896, amending section 1367 of chapter 410 of the Laws of 1882, which gave a District Court of the city of New York the power to open defaults taken before it — a power now inherited by the Municipal Court of said city — provides that any order vacating a judgment shall recite and contain the grounds for the order. No grounds are specified in the order appealed from. It is, therefore, fatally defective, and must be reversed. The matter should be remitted to the justice for a rehearing, and the entry of a proper order on his decision. ( Colwell v. Devlin, 20 Misc. Rep. 355.)
The most serious question is whether the full costs of the appeal should be imposed upon the respondent. It was held by the Appellate Term of the city and county of New York, in Colwell v. Devlin ( 20 Misc. Rep. 616), Szerlip v. Baier (21 id. 692), and Thornall v. Turner (23 id. 363), that the appellant is entitled, as a matter of right, under section 3067 of the Code of Civil Procedure, to thirty dollars costs, the same amount as allowed on the reversal of a judgment. This might be the rule when the order is reversed absolutely. But in the cases of Colwell v. Devlin and Thornall v. Turner the order was not reversed absolutely, but the application was remitted to the justice for a rehearing, and that is the disposition we have directed in this case. If costs are to be awarded on appeals from orders of this character the same as on appeals from judgments, we do not see why the analogy should not be complete, and why, under subdivision 2 of section 3066, the costs of appeal where the matter is remitted for a rehearing are not in the discretion of the court. But in our opinion the provision of the statute, that an appeal from an order shall lie as from a judgment, does not prescribe the amount of costs to be awarded on such appeal. The amount of costs and the character of the appeal are different subject-matters. We think the ordinary rule should prevail here that obtains on similar appeals in the Supreme Court, that is the amount allowed is to be confined to ten dollars costs and disbursements. The contrary construction appears to us wholly unreasonable. It seems extremely improbable that it could have been the intention of the Legislature to allow upon appeals from a Justice's Court three times as much as is allowed upon an appeal of a like order made in the Supreme Court itself.
The order should be reversed, with ten dollars costs and disbursements to the appellant, and the motion remitted to the justice for a rehearing and for the entry of the proper order.
All concurred.
Order reversed, with ten dollars costs and disbursements to appellant, and motion remitted to the justice for rehearing and the entry of a proper order