
    HIRAM LOSSEE, Appellant, v. HALSEY ELLIS and others, Respondents.
    
      Action to foreclose mortgage— costs —error of referee as to— how corrected.
    
    In an action to foreclose a mortgage the costs are in the discretion of the court. Where a referee in such a case decides that the plaintiff is only entitled to certain costs, his error, if any, can only he corrected hy an appeal from the judgment, and not upon a motion.
    Appeal by tbe plaintiff from two orders made at a Special Term of this court, one of which denied plaintiff’s motion for a retaxation and further allowance of costs in said action, and tbe other of which granted defendants’ motion for a retaxation and reduction of costs.
    
      F. W. Hubbarrd, for tbe appellant.
    
      W. F. Ford, for tbe respondents.
   Mullin, P. J.:

Tbe plaintiff brought an action to foreclose a mortgage; tbe defendants, or some of them, appeared and answered.

Tbe issues were referred for trial to a referee, wbo, after hearing the proofs and allegations of the parties, ordered judgment of foreclosure and sale in favor of the plaintiff, with costs from the time one of the defendants was brought in, which was after the issue was joined as to the other defendants.

The plaintiff’s counsel made out and served a full bill of costs in behalf of the plaintiff and presented it to the clerk of Jefferson county for adjustment.

The defendants’ counsel appeared on the taxation and objected to the allowance of the following items in said bill, viz.:

Allowance under section 308 of the Code in force prior to September 1, 1877.............................$47 93

Term fees, April and June........................... 20 00

Drawing interrogatories to annex to commission.......... 10 00

$77 93

By the moving affidavit, it appears that defendants’ counsel objected to these items as not admissible under the decision of the referee, and the clerk rejected them on that ground.

The plaintiff’s counsel then moved, at a Special Term, for a readjustment of said costs and the allowance of the items thus rejected. The motion was denied and plaintiff appeals.

At the taxation, the clerk allowed to the plaintiff the following items charged in plaintiff’s bill of costs, viz.:

Costs before notice of trial........................... $25 00

Costs after notice of trial............................. 15 00

Three additional defendants served..................... 6 00

$46 00

The defendants’ counsel moved, at Special Term, for a readjustment and disallowance of these items, on the ground they were not allowable under the judgment of the referee.

After hearing the counsel for the parties the court ordered a readjustment of the costs and the disallowance to plaintiff of fifteen dollars, being the amount charged as costs after notice of trial. From both these orders plaintiff appeals.

It bas been repeatedly held tbat in actions for tbe foreclosure of mortgages tbe costs are in tbe discretion of tbe court. (Morris v. Wheeler, 45 N. Y., 708; Pratt v. Ramsdell, 16 How. Pr., 59; Bartow v. Cleveland, 16 How., 364; Code, § 306.)

Tbe counsel for tbe plaintiff refers us to Hunt v. Chapman (51 N. Y., 555) as overruling tbis proposition, and bolding tbe plaintiff, if be recovers a judgment, entitled to costs and tbat they are not in tbe discretion of tbe court. I do not understand tbe case as deciding any sucb proposition. Had. it been tbe intention of tbe Court of Appeals to overturn a rule of law tbat bas been in force for so long a time and so uniformly acted upon it would bave been quite 'likely to bave said so in unequivocal terms. Tbe question in tbe case cited was wbetber tbe defendant was entitled to bave a counter-claim allowed in an action for foreclosure, and it was held tbat it could be, as an action of foreclosure was an action on a contract within section 150 of the Code. Tbis comes far short of bolding tbat in sucb an action tbe plaintiff, if be recovers, is entitled to costs as a matter of course.

If these costs are in tbe discretion of tbe court tbe referee, in tbe exercise of it, held and decided tbat tbe plaintiff was not entitled to them until after one of tbe defendants was brought in, and tbat was after tbe trial was commenced at Special Term. Tbe clerk was bound 'to conform to tbe judgment in tbe adjustment of tbe costs in tbe cause, and having refused to do it, tbe judge at Special Term was right in setting it aside and disallowing costs not in conformity to tbe judgment.

If tbe plaintiff was right in bis position tbat be was entitled to tbe whole costs in tbe cause, notwithstanding tbe decision of tbe referee, tbe error could not be corrected by motion. Tbe costs were part of tbe relief granted in tbe cause, and any error in tbe relief could only be reached by appeal from tbe judgment. (Clarke v. City of Rochester, 34 N. Y., 355; McGregor v. McGregor, 32 id., 479.)

Tbe orders of tbe Special Term are affirmed, with ten dollars costs, and disbursements in one appeal only.

Present — Mullin, P. J., Talcott and Smith, JJ.

Orders of Special Term affirmed, with ten dollars costs, and disbursements in one appeal only.  