
    PEOPLE ex rel. OAK HILL CEMETERY ASS’N v. PRATT et al.
    (Supreme Court, General Term, Fifth Department.
    January 18, 1893.)
    Costs—Appeal—Cebtiobabi to Review Assessment. Laws 1880, c. 269, § 6, provides that on certiorari to review an assessment costs shall not be allowed against the assessors, unless they acted in bad faith, etc. Section 7 provides that an appeal from the decision on such certiorari may be taken “as from an order, and shall be heard and determined in like manner.” Held, the costs of an appeal from a decision on certiorari to review an assessment are regulated by Code Civil Proc. § 3239, which provides for costs on appeal from “an order;” and section 3240, providing for “costs in a special proceeding, ” does not apply, though such certiorari is a “special proceeding. ”
    Appeal from special term, Monroe county.
    Certiorari by the Oak Hill Cemetery Association against Luther A. Pratt and others to review an assessment. ■ From an order directing a retaxation of costs, defendants appealed. Reversed.
    Argued before DWIGHT, P. J., and MACOMBER and LEWIS, JJ.
    C. D. Kiehel, for appellants.
    J. D. Coffey, for respondents.
   DWIGHT, P. J.

The proceeding was by certiorari to review an assessment. ■ It went, by appeal of both parties, from the special term to the general'term, and thence to the court of appeals. The latter court sustained the appeal of the relator, and made a final order in its favor, with costs in the general term and court of appeals. 29 N. E. Rep. 7. These costs the clerk taxed as on appeals from orders. The special term directed a retaxation and allowance of costs as in an action, and from that order this appeal is taken. We think the clerk was right, and that the order for a retaxation was erroneous. Certiorari is, no doubt, a special proceeding, and the award and taxation of costs therein generally are governed by section 3240 of the Code of Civil Procedure; but the case of certiorari against assessors, to review their official action, is an exceptional one, and is governed, in respect to the award and taxation of costs, by the provisions of chapter 269 of the Laws of 1880, which is the statute under which the proceeding is taken. By section 6 of that statute it is provided that—

“Costs shall not be allowed against assessors or other officers whose proceedings may be reviewed under this act, unless it shall appear to the court that they acted with gross negligence, in bad faith, or with malice. ”

In the case of People v. Asten, 4 N. E. Rep. 752, the court of appeals held that this provision (section 6) relieved the assessors from costs only upon the hearing at special term on the return of the certiorari; that an appeal from the determination there made was subsequently provided for, (by section 7,) and directed to be heard and determined in like manner as an appeal from an order; and that the costs of such appeal might be awarded in the discretion of the court, under section 3239 of the Code of Civil Procedure, which is the section providing for costs on appeal from orders. Section 7 (above referred to) of the act of 1880, provides for an appeal from the determination made under this act, which shall be taken “as from an order, and shall be heard and determined in like manner.” The decision in the Case of Asten, (above,) though announced in a very brief memorandum, is a distinct recognition by the court of appeals of the exceptional character of the special proceeding by certiorari against assessors, which, is given by the act cited, and of the rule that the costs of appeals in that proceeding are to be allowed, if at all, as on appeals from orders, under section 3239, and not as in actions, under section 3240 of the Code. In the case of People v. Keator, 101 N. Y. 612, 3 N. E. Rep. 903, the same court, referring to the provision of section 7 (above) to the effect that all appeals in this proceeding shall be heard and determined as appeals from orders, says:

“We do not think that this is merely permissive, and that an appellant has the option to appeal either under the Code or the section named. The provision is a part of the whole scheme, and was intended to provide the precise way in which an order, judgment, or determination under that act could be reviewed.”

The language—“order, judgment, or determination”—here used is quoted from the statute, but the court of appeals insists that such final determination is an order, and not a judgment. In People v. Dolan, 126 N. Y. 166, 179, 27 N. E. Rep. 269, referring to the final determination appealed from, the court says: “The counsel calls it a judgment of the general term. It is in truth an order, and has been so held to be by us. Citing the Case of Keator, (above.) We think we follow the plain indication of these cases when we hold that the proceeding by certiorari against assessors, given by chapter 269. of the Laws of 1880, is peculiar and exceptional among special proceedings; that it is governed in all respects by the act by which it is provided; that appeals therein are to be had and treated in all respects as appeals from orders; and that costs on such appeals, when allowed in the discretion of the court, are to be taxed as motion costs, and not as the costs of an appeal from a judgment. The order of the special term should be reversed, and the taxation by the clerk confirmed, with costs. So ordered. All concur. 
      
       Code Civil Proc. §§ 3239, 3240, are as follows:
      “3239. Upon an appeal from an interlocutory judgment or an order in an action, costs are in the discretion of the court, and may be awarded absolutely, or to abide the event, except as follows: (1) Where the appeal is taken from an order granting or refusing a new trial, and the decision upon the appeal refuses a new trial, the respondent is entitled, of course, to the costs of the appeal. (2) Where an appeal is taken from an order refusing a new trial, and an appeal is also taken from the judgment rendered upon the trial, neither party is entitled to the costs of the appeal from the order.
      “3240. Costs in a special proceeding instituted in a court of record, or upon an appeal in a special proceeding, taken to a court of record, where the costs thereof are not specially regulated in this act, may be awarded to any party, in the discretion of the court, at the rates allowed for similar services, in an action brought in the same court, or an appeal from a judgment taken to the same court, and in like manner. ”
     