
    LAWRENCE J. CALLANAN, et al., Respondents v. GEORGE F. GILMAN, Appellant.
    
      Costs—where the remittitur from the court of appeals simply shows that the judgment beloiu was modified as stated in the opinion, without costs, the appellant has a right to have his liability for general term costs determined on a motion—What is necessary to be shown on such motion.—Omission of opinion from appeal booh, effect of.
    
    The remittitur from the court of appeals in this action (which was an equity action), recited that that court did order and adjudge that the judgment of the general term of the superior court, appealed from by the defendant, be modified as stated in the opinion, without costs; and then proceeded, “ Therefore it is considered that said judgment be modified as stated in the opinion, without costs.” The defendant moved at special term to have the special term judgment, and that of the general term, for costs, canceled of record on depositing with the clerk of the court the amount of the special term judgment, or that amount with interest thereon to date of its tender to plaintiff’s attorney. The motion was denied and from the order entered on that denial the present appeal was taken.
    
      Held, (1) That defendant had a right to have his liability for costs beyond the amount tendered by him determined, and that a motion is the proper remedy. (2) That the court of appeals had power to relieve the defendant from the general term costs; but as it did not appear from the remittitur that the court had in express terms exercised this power, and as the remittitur referred to the opinion of that court (which was not printed in the appeal book on the present appeal) as the source from which the nature and extent of the modification was to be gathered, there was nothing to show that it intended to interfere with the costs imposed below, or that its actual determination was to relieve defendant from the general term costs, and as the burden of showing such an intention, or such an actual determination, rested on the defendant, the order below should be affirmed.
    Before Sedgwick, Ch. J., Freedman and O’Gorman, J.J.
    
      Decided May 7, 1888.
    Appeal from order.
    The facts appear in the opinion.
    
      Henry Schmitt, attorney, and of counsel for appellant, argued:
    I. The court of appeals having in this equity action given the exact language in which the judgment shall be modified (which it did not do in any of the cases which can be cited by the appellant), and having therein provided the extra amount of costs to be paid, and then having directed that as so modified, the judgment was to be affirmed without costs, we submit that thereby the plaintiffs are entitled only to the costs that have' been directed by the court of appeals to be paid, and that they are not entitled to the costs of the appeal from the judgment to the general term, for the following reasons: 1. Where costs are in the discretion of the court the decision must specify which party is entitled to costs. Higgins v. Callahan, 2 Civ. Pro. Pep., 302. The court of appeals has specified the amount of costs the plaintiffs shall be paid, to wit, $164.21, but it does not give them any other costs. , 2. It was within the discretion of the court of appeals to award the costs in this action, the action being one in equity and not at law. § 3288, Code ; Chipman v. Montgomery, 63 N. T. 221. The court of appeals did not modify the judgment of the special term, but. the judgment of the general term, and it awarded to the plaintiffs the costs of the original trial. The appeal to the general term was necessary to enable the defendant to get to the court of appeals, and the defendant should not now be punished in being compelled to pay the costs of the appeal to the general term when the judgment of the general term was changed by the court of appeals, and the appeal was necessary to effect that change.
    II. The cases cited by the plaintiffs were where the judgment was <c affirmed in part ” or “ reversed in part” and in such case plaintiffs contend there has been, a construction placed on the words “ without costs.” But those cases were not equity actions, and in none of them did the court of appeals in its judgment name the actual amount to be paid as costs and affirm the judgment as modified without costs.
    
    
      Edwin M. Wight, attorney, and of counsel for respondents, argued:
    The appeal from the order of Judge Truax should be dismissed for the reasons—1st, The Code governs the question of costs on modification of judgment. § 306, Code of Procedure; § 3238, New Code. And these provisions have been repeatedly construed by the court of appeals to mean that they had no power over costs below in such case. Montgomery Co. Bank v. Albany City Bank, 7 N. Y., 459; Sturgis v. Spofford, 5.8 Ib. 103; Chipman v. Montgomery, 63 Ib. 221; Sisters of Charity v. Kelly, 68 Ib. 628; Pet’n of P. E. Pub. School, 86 Ib. 396; Murtha v. Curley, 92 Ib. 359; Water Com’rs of Amsterdam, 104 Ib. 677. 2d. The special term before which this motion was made had no power over the costs of the general term. 3d. The language of the opinion and of the remittitur conform to each other, and show clearly the purpose of the court not to interfere with the judgments for costs below.
    
      
       The reporters have been unable to discover in the remittitur any sped- . fic.ation of the amount of costs to be paid to the plaintiffs.
    
   By the Court.—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 determined, and a motion is the proper remedy. Patten v. Stitt, 50 N. Y. 591.

So it must be conceded that, inasmuch as the action is 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. 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 bound in the remittitur and the opinion. They must be construed together because the remittitur 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 samé 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 cost and disbursements.

Sedgwick, Ch. J., and O’Gorman, J., concurred.  