Opinion
Argued June 9, 1874
Decided June 16, 1874
Homer A. Nelson for the appellants.
Wm. Allen Butler for the respondents.
The counsel for the appellants insists that the order is not appealable to this court, and that the question involved therein and determined thereby can only be reviewed here upon appeal from the judgment. I think it comes directly within the fourth subdivision of section 11 of the Code. The right to costs is substantial, and when claimed by a party, as in the present case, by the positive provision of the statute, does not involve any question of discretion. The action was for the recovery of money only, and the judgment finally recovered by the respondents was less favorable than that offered by the appellants, pursuant to section 385 of the Code, which was not accepted by the respondents. This exonerated the appellants from liability to pay costs arising after the time limited for the acceptance of the offer, and gave them the right to recover costs subsequently accruing. Had not this right been affected by another provision of the Code, the appellants would have an absolute right to recover all their subsequent costs. Section 306, among other things, provides that the costs of an appeal shall be in the discretion of the court: 1st. When a new trial shall be ordered. 2d. When a judgment shall be affirmed in part and reversed in part. It is clear that the discretion by this section is given to the appellate court only, and not conferred upon any other. The judgment in this case was affirmed in part and reversed in part by this court, and in the exercise of its discretion conferred by this section it ordered that neither party should recover costs against the other in this court. This limited the right of the appellants to all subsequent costs given by section 385, and they do not claim to recover of the respondents the costs of the appeal to this court. Their right to these is not involved in the case. But this is the only limitation of the right given by section 385. The General Term of the Supreme Court affirmed the judgment. It, therefore, had no discretion as to the costs of the appeal to that court under section 306, and it did not attempt to exercise any. It follows that the appellants are entitled to costs of that appeal under section 385.
The order of the Special and General Terms of the Supreme Court must be reversed, and an order entered directing judgment for the appellants for their costs subsequent to the failure of the respondents to accept the offer, including the cost of the appeal to the General Term, to be adjusted with cost of the motion, and of the appeals from the order from the Special to the General Term, and from the latter to this court.
All concur.
Ordered accordingly.