
    The People, Resp’ts, v. The Fitchburg Railroad Company, App'lt.
    
    
      (Court of Appeals,
    
    
      Filed May 3, 1892.)
    
    1, Costs—Extra allowance—Submission op controversy.
    An extra allowance cannot be granted in a controversy submitted to the court by agreement and which first appears in the form of an action upon the calendar of the general term.
    3. Same.
    The provision as to granting an extra allowance for a difficult and extraordinary case was intended to apply only to actions commenced in the ordinary way and in which an answer or demurrer was interposed.
    Appeal from judgment of the supreme court, general term, third department, denying motion for extra allowance.
    
      O. A. Torrey and T F. Hamilton, for app’lt; 8 W. Rosendale, atty.-genl., for resp’ts.
    
      
       Affirming 44 St. Rep., 229.
    
   O’Brien, J.

The question involved in this appeal is the right of the defendant to an additional allowance of costs under the provisions of § 3258 of the Code of Civil Procedure. It is claimed that the case was a difficult and extraordinary one within the meaning of that section. The state claimed that the defendant was bound to pay to the comptroller over $1,800 in taxes under the provisions of chapter 143 of the Laws of 1886, in consequence of its consolidation with other railroad companies organized under the laws of other states. The defendant denied its liability. A written submission of the controversy was made between the defendant and the attorney-general under the provisions of § 1279 of the Code. After stating the facts each party demanded judgment; the state that it recover the taxes, and the defendant that it be adjudged that it was not liable to pay the same, “ with costs of the action."

The general term upon the submitted case directed judgment for the plaintiffs, with costs. Upon appeal to this court the judgment was reversed and it was held that the defendant was not liable for the payment of the taxes demanded. The case having been remitted to the supreme court, the attorney for the defendant moved upon affidavits and the record for an additional allowance, which motion was denied, as the order states, “For the reason that, notwithstanding the fact that the court would ordinarily have the power to grant an additional allowance, the parties hereto have stipulated as to costs in the submission presented to the court, the court is, for that reason, without power to grant an additional allowance of costs.” By § 1281, costs in such cases are always in the discretion of the court but no costs can be taxed for any proceeding before notice of trial. If the provisions of the Code, authorizing the court to grant an extra allowance in certain cases,, have any application to controversies submitted by agreement of the parties, we do not think that the power of tlie court in .that-respect would be limited or affected by the terms of the submission. The fact that both parties, when stating the relief to-which they deemed themselves entitled, claimed costs also, did not. necessarily entitle the successful party to costs in the judgment. ¡Nor would an omission to claim costs as part of the relief necessarily deprive either party of them in case of success, if the court in the judgment directed their recovery. The whole matter of costs "still remained in the discretion of the court, and as an additional allowance is one of the incidents that may follow a. judgment for costs, that also remained open for the determination of the court, in the exercise of its discretion, and as justice might require." But we do not think that a controversy submitted to-the court by agreement and which first appears in the form of an action upon the calendar of the general term is a case in which an extra allowance may be granted. That provision embraces “ a. difficult and extraordinary case, where a defense has been interposed, in any action ” and was, we think, intended to apply only to actions commenced in the ordinary way and in which an answer or demurrer was interposed.

The extraordinary expenses of a litigation, which were intended to be covered by this provision of the Code, seldom, if ever, attach to the determination of a question submitted to the general term by agreement of the parties. The labor and expense involved in settling the facts or the law in an action commenced and prosecuted in the ordinary way are rarely, if ever, incurred or made necessary in a case where the parties agree upon the facts and submit them to the general term for the purpose of ascertaining in a friendly way what their legal rights are. The expense which usually attends the determination of a controversy at the-circuit or special term is saved. The power of the court to award to the successful party even general costs is limited to costs after notice of trial ana the right to any costs whatever, whether the-action is at law or in equity, is subject to the discretion of the-court. It may also be observed that in actions commenced and prosecuted in the ordinary way, where an additional allowance has been or may be properly granted, the expense and labor involved in an appeal to the general term, or even to this court,, is not considered in the process of determining whether the case is properly within the section at all, and if so, the amount that, should be allowed as sufficient indemnity to the party succeeding. The legislature in enacting the provision had reference to proceedings in an action in those courts which ordinarily exercise original jurisdiction and not to proceedings in an appellate court, and such seems to be the view of this court in Wolfe v. Van Nostrand, 2 N. Y., 570. It is quite true that the general term may very properly be said to be a court of original jurisdiction when deciding a controversy submitted to it upon an agreed case, but, so far as concerns the present question, the judgment may be treated as the determination of an appeal, and it seems to us that. such a case is not within the letter or the spirit of the statute. On this ground, therefore, the order appealed from should be-affirmed, with costs.

All concur, except Matnard, J., not sitting.  