
    Lawrence J. Callanan et al., Resp’ts, v. George F. Gilman, App’lt.
    
      (New York Superior Court, General Term,
    
    
      Filed May 7, 1888.)
    
    1. Costs—Liability fob—Extent of—Properly determined on motion-.
    At a special term the plaintiff had judgment for injunctive relief, with $164 20 costs. The general term affirmed the judgment with $87.29 costs. On the defendant’s appeal, the court of appeals modified the judgment. The remittitur stated that the judgment should he modified as stated in the opinion, without costs. The modification related to the extent of the injunctive relief granted by the judgment. The defendant tendered to the plaintiffs the sum of $164.20 with interest, as, and for the costs of the original judgment, but declined to pay the costs of the general term judgment, and the tender having been refused, moved for an order of satisfaction of both judgments, upon the deposit by him with the clerk of the court of the sum of $164.20, with interest. This motion was denied and an appeal taken. Held, that the defendant had the right to have his liability for costs, beyond the amount tendered by him determined, and that a motion was the proper remedy
    2. Same—In equitable action—Court of appeals may determine question.
    
      Held, that the action being of an equitable character, the court of appeals had full power to dispose of the entire action, and to determine absolutely the question of costs.
    8. Same—Appeal from order fixing liability for—Effect of omission FROM RECORD
    
      Held, that the burden was on the defendant to establish the extent of the-actual determination of that court, and that the proof of such determination was to be found in the remittitur and opinion, and that the opinion not being contained in the appeal book on this appeal, it could not be said that the order appealed from was erroneous
    Appeal from order. The facts are sufficiently stated in the opinion
    
      Henry Schmitt, for app’lt; Edwin M. Wight, for resp’ts.
   Freedman J.

At special term the plaintiffs had judgment for injunctive relief, with $164.20 costs. The general term affirmed the judgment, with $87.29 costs. On defendant’s appeal the court of appeals modified the judgment. The material parts of the remittitur are as follows, viz.: “Whereupon the said court of appeals, * * * did order and adjudge that the judgment of the general term of the superior court of the city of New York appealed from in this action to this court be and the same is hereby modified as stated in the opinion, without costs. And it was also further ordered that the record aforesaid and the proceedings in this court be remitted to the said superior court, there to proceed upon according to law. Therefore it is considered that the said judgment be modified as stated .in the opinion, without costs, as aforesaid.”

On reading and filing the remittitur an order was made at special term making the judgment of the court of appeals the judgment of this court and modifying the original judgment accordingly without costs in the court of appeals. The modification related to the extent of the injunctive relief granted by the judgment.

The defendant thereupon tendered to the plaintiffs the sum of $164.20, with interest, as and for the costs of the original judgment, but declined to pay the costs of the general term judgment, and the tender having been for that reason refused, the defendant moved for an order of satisfaction of both judgments upon the deposit by him with the clerk of this court of the sum of $164.20, with interest. His motion was denied at special term and the present appeal is from the order of such denial.

The defendant has a right to have his liability for costs beyond the amount tendered by him, and a motion, is the proper remedy. 50 N. Y., 591.

So it must be conceded that, inasmuch as the action is of ap equitable character, the court of appeals had full power to dispose of the entire action and to determine absolutely the question of costs. It therefore remains to be seen what the court of appeals actually determined.

On the motion below the burden was on the appellant to establish the extent of such actual determination. By the tender of the costs inserted in the original judgment with interest, the appellant impliedly admitted that the court of appeals did not intend that there should be no costs whatever. The actual intention on the part of the court of appeals he was bound to substantiate by proof. The evidence of such actual intention is to be found in the remittitur and the opinion. They must be construed together, because the remitttur refers to the opinion as the source from which the nature and the extent of the modification is to be gathered. But the printed papers on the present appeal do not contain the opinion, nor has the opinion been brought to our attention in some other way. For all that appears, therefore, the court of appeals may have intended to grant without costs in that court, a modification which should not interfere with the costs imposed below.

The question seems to be a close one, but under the imperfect disclosure of all the facts which bear upon it, and in view of the fact that the order now under review was made by the same learned judge who directed the entry of the order upon the remittitur, I am not prepared to say that there is error in the order appealed from.

The order should be affirmed with ten dollars costs and disbursements.

Sedgwick, Ch. J., and O’Gobman, J., concur  