
    Hill v. Sheldon, County Treasurer. Bennett v. Same.
    
      (Supreme Court, General Term, Fifth Department.
    
    December 30, 1889.)
    Costs—Allowance—Statutory Proceedings.
    In proceedings before the county judge, under a statute containing no provision for costs, an award of costs by the county judge is error.
    Appeal from orders of Wayne county judge.
    These actions were brought by Francis A. Hill and John P. Bennett, respectively, against Andrew F. Sheldon, county treasurer, to obtain an order directing the county treasurer to invest certain taxes in accordance with Laws FT. Y. 1869, c. 907. Costs were awarded to the petitioners. The defendant appealed.
    Argued before Barker, P. J., and Dwight and Macomber, JJ.
    
      C. H. Roys, for appellant. J. Welling, for respondents.
   Dwight, J.

The proceeding is by petition to the county judge under the provisions of section 4, c. 907, Laws 1869, as amended by chapter 283, Laws 1871. We regard the decision of the case as controlled in all respects, as to its merits, by that of the court of appeals in Clark v. Sheldon. 106 N. Y. 104, 12 N. E. Rep. 341, which was a proceeding of the same character, by a tax-payer of another town of the same county against the same defendant, as in this case. But the question of costs in the proceeding before the county judge did not arise in that case; no costs having been awarded by the county judge to either party, and the costs awarded by the court of appeals being confined to those in that court and in the supreme court on appeal. In this case the county judge awarded costs to the petitioner against the defendant. This provision of the order was clearly erroneous. As we said in Patterson v. Burnett, 4 N. Y. Supp. 921, costs, under our present practice, are a creation of the statute, and can be awarded only in cases which are clearly brought within the statutory provision. In this case the statute, cited above, which authorizes the proceeding, makes no provision for costs therein at any stage, and there is no general or special provision of statute which justifies an award of costs in the proceeding before the county judge. Section 3240 of the Code of Civil Procedure provides, generally, for the award of costs in special proceedings, in the discretion of the court, but only when the proceeding is instituted in a court of record, or on appeal to a court of record. This proceeding was instituted before the county judge, as an officer designated by the statute for that purpose, and not in any court of record, or otherwise. The order should be modified by striking out the provision as to costs, and, as so modified, affirmed, without costs of this appeal to either party. All concur. So ordered.  