
    The People of the State of New York, Appellant, v. John Alden, Respondent.
    An action brought by the district attorney of a county in the name of the People to recover a penalty under the game laws (Chap. 534, Laws of 1879, as amended by chap. 531, Laws of 1880, and chap. 317, Laws of 1883), is an action “ to recover money or property or to establish a right or claim for the benefit of a county ” within the meaning of the section of the Code of Civil Procedure (§ 3343) in reference to costs in such an action; and where costs are awarded to the defendant, they must be awarded against the county as prescribed in said section.
    (Argued December 11, 1888;
    decided January 15, 1889.)
    Appeal from order of the General Term of the Supreme Court in the third judicial department, made February 28, 1888, which affirmed an order of Special Term denying a motion for an order striking out of the judgment herein costs awarded to defendant against the county of Warren.
    This action was brought by the "district attorney of the county o"f Warren to recover penalties under the act (Chap. 557, Laws of 1885), for the alleged violations of said act. The complaint was dismissed on the ground that the cause of action was extinguished by the repeal of said act by chapter 194, Laws of 1886, and costs were awarded against the county.
    
      Charles R. Patterson, for appellant.
    The statute prohibits costs in favor of defendant. (Laws of 1880, chap. 531, § &.) In an action at law, a party thereto is not liable for costs, and costs cannot be awarded to any party, unless the statute directs it, the common law not allowing costs, in the absence of a statute directing it, the defendant cannot recover costs. (Kraft v. Wilson, 8 Civ. Pro. 359 ; Clark v. Dewey, 5 Johns. 251; Waterman v. Van Benschotten, 13 id. 425; Downing v. Marshall, 37 N. Y. 380, 381; Supervisors v. Briggs, 3 Denio, 173; Stoddard v. Clark, 9 Abb. [N. S.] 310, 312; Ward v. James, 8 Hun, 529; Kilburn v. Lowe, 37 id. 237, 240; Furman v. Cunningham, 34 id. 606.) The statute under which the action was brought was repealed while the action was pending, and before it was terminated, this extinguished the plaintiffs’ cause of action and barred the plaintiffs’ right to recover the penalties and costs of the defendant. (Butler v. Palmer, 1 Hill, 324; People ex rel. Canajoharie Nat. Bank v. Bd. of Suprs., 67 N. Y. 109; Curtis v. Leavitt, 15 id. 1,13,153; People ex rel. Fleming v. Livingston, 6 Wend. 527 ; Smith v. Banker, 3 How. Pr. 142; Church v. Rhodes, 6 id. 281.) Section 3243 of the Oode of Civil Procedure can have no force or effect, unless it be shown by the defendant, before the clerk taxing costs, that this action was brought for the benefit of the county of Warren. (People v. Tremain, 17 How. Pr. 10, 13.) Hnder section 3245 the plaintiffs in actions against municipal corporations must prove before the clerk taxing costs, as a condition precedent to the right to costs, that the claim was presented to the fiscal officer of the corporation before costs may be allowed. (Baine v. City of Rochester, 85 N. Y. 523; Judson v. Village of Olean, 40 Hun, 158; Dressel v. City of Kingston, 32 id. 527.) The same rule exists in other cases, actions at law, where costs are conditional or the parties to be charged therewith depend upon extrinsic facts. (Elliott v. Lewickey, 51 Super. Ct. [J. & S.] 51; Voorhees v. McCartney, 51 N. Y. 387; Kelly v. N. Y.& M. R. R. R. Co., 81 id. 233.) The plaintiffs have as a statutory right, the right to have the costs, if there be any, taxed and awarded in a legal way, that is, by the clerk. The court cannot take away that right. (Code Civ. Pro., § 3262.) Plaintiffs’ remedy is the same as if no order or direction had been made; their remedy is by motion, not by an appeal from the judgment. (Code Civ. Pro. § 3264; Broadway v. Scott, 31 Hun, 378, 381; Syms v. Mayor, etc., 105 N. Y. 153 ; Davis v. Davis, 3 N. Y. S. R. 163 ; Ayers v. West. R. R. Corp., 49 N. Y. 660; Block v. O’Brien, 23 Hun, 84; Burdick v. Hale, 13 Abb. N. C. 60; Fuller v. Conde, 47 N. Y. 89; Lanz v. Troat, 46 How. Pr. 94; Cythe v. La Fountain, 51 Barb. 195.) A judge has no power to award costs in the first instance, except for interlocutory purposes. Costs in actions at law are governed by statute and follow or not as a matter of statutory right, irrespective of the order of the court. (Gray v. Hannah, 3 Abb. [N. S.] 183; Combs v. Combs, 25 Hun, 279; Shippard v. Hoit, 7 Hill, 198; Carpenter v. Willett, 3 Robt. 700 ; Andrews v. Long, 22 id. 24; 41 Hun, 212; Kilburn v. Lowe, 37 id. 237, 240; Stoddard v. Clark, 9 Abb. [N. S.] 310, 312; Zultger v. Walters, 64 Barb. 417; Hamiston v. Bullard, 63 id. 11; King v. Poole, 36 id. 242; Ackerman v. De Tude, 36 Hun, 44; Crowell v. Smith, 35 id. 182; Ryan v. Doyle, 40 How. Pr. 215 ; Glackin v. Zeller, 52 Barb. 147; Munson v. Curtis, 6 N. Y. S. R. 189 ; Fargo v. Helmes, 6 id. 504; Cole v. Terpernning, 27 Hun, 111.)
    
      L. M. Brown for respondent.
    The defendant was entitled to costs of the action; the action being one brought by the People of the state against the defendant to recover penalties amounting to $500. (Code of Civ. Pro. §§ 3228, subd. 3, 3229.) The judgment for costs was properly entered against the county of Warren. (Laws of 1885, chaps. 577, 934; Laws of 1879, chap. 534, § 33; 2 B. S. [7th ed.] 2107; Code of Civ. Pro. § 3243; Logan v. Thomas, 11 How. Pr. 160 ; Webb v. Crosby, 11 Paige, 193,195, Remington Paper Co. v. O'Brien, 18 Week. Dig. 209; Cornly v. Mayor, etc., 1 Civ. Pro. 206.) The costs were part of the relief granted in the cause, and any error in the relief could only be reached by appeal from the judgment. (Lossee v. Ellis, ,13 Hun, 655, 657; Stevens v. Veriane, 2 Lans. 90, 92; Chapin v. Churchill, 12 How. Pr. 367; McLean v. Olcott, 11 Hun, 394; 73 N. Y. 603.)
   Andrews, J.

The order should he affirmed.

All concur.

Order affirmed.  