
    BROWN against LEIGH.
    
      Court of Appeals;
    
    December, 1872.
    Appeal from Orders, to Court of Appeals.— Costs.
    An order of the court below, setting aside a judgment for costs, and directing a re-adjustment or leaving the party to apply for taxation, does not affect a substantial right, and is not appealable to the court of appeals.
    Judgment cannot be entered for costs, on a remittitur of the court of appeals on their reversal, with costs, of an interlocutory order.
    The proper practice is to apply to the court or a judge to adjust the costs.
    On appeal to the court of appeals, from an order, full costs are allowed.
    The items taxable,—stated.
    The practice of appealing to the court of appeals, from orders not affecting the merits, and in trivial cases,—condemned.
    Appeal from an order.
    Samuel C. Brown, the plaintiff in this action, having appealed to the court of appeals, from an order of the supreme court at general term, affirming an order-setting aside an amended complaint on the ground that the amendment was one not authorized by the Code, this court reversed the order and denied the motion to strike out the amended complaint. The decision is reported in 12 Abb. Pr. N. S., 193. The material clause in the remittitur from the court of appeals was as follow :
    
      “ Therefore it is considered that the said orders of the general and special terms be reversed, and that [the] motion be denied with costs.”
    Plaintiff then served on defendant the following bill of costs:
    
      
      
    
    The plaintiff, also, on motion at special term, obtained an order of the court in the following terms, omitting recitals: “ That the judgment and order of the court of appeals be, and the same is hereby made the judgment of this court; and that the appellant, Samuel C. Brown, have execution therefor.”
    Defendant attended before the clerk, and duly and timely objected to the adjustment of said costs, on the following grounds, to wit:
    1. That it was irregular to notice said costs for adjustment until the remittitur of the court of appeals was sent down and filed.
    2. That the decision of the court of appeals was decision of a motion only, and that the plaintiff was not entitled to a sum exceeding ten dollars, and that as the amount was not fixed by the court, the clerk could not allow anything.
    3. That the plaintiff was not entitled to any of said costs.
    4. He also objected to each and every item.
    All these objections were overruled by the clerk, and every item allowed, as charged in the bill of costs, amounting in the whole to one hundred and fifty-eight dollars and nineteen cents.
    
      The clerk entered a judgment, which, after reciting the appeal, and the decision of the court of appeals, concluded as follows:
    “And whereas the remittitur thereon from said court of appeals has been duly filed in this court, and an order made thereon that the judgment of said court of appeals be made the judgment of thiscourt; and that the plaintiff and appellant have execution thereon; and the costs of said appellant having been duly taxed at the sum of one hundred and fifty-eight dollars and nineteen cents ; now, therefore, it is adjudged that the said plaintiff do recover of said defendant the sum of one hundred and fifty-eight dollars and nineteen cents, his costs as aforesaid on said appeal, and that he have execution thereon.”
    Defendant then applied to the court at special term, and obtained an order revoking the previous order above mentioned, and giving plaintiff leave to apply at a subsequent special term for payment.
    Defendant’s counsel obtained an order to show cause why the judgment should not be set aside for irregularity as not authorized by the remittitur, and the rules and practice of the court; why the adjustment of costs should not be set aside as not authorized by the remittitur; and why a re-adjustment should not be had.
    On the hearing of this motion, the court ordered that the judgment and the costs adjusted, be set aside and vacated, and further, that the order of the court of appeals be made the order of this court on filing the remittitur.
    The court at general term, on appeal from this order, affirmed it, and ordered that the plaintiff have costs of motion in the court of appeals, with a stay of proceedings, if their decision should be taken to that court for review.
    From this order the plaintiff appealed to the court of appeals.
    
      
      Edward J. Maxwell, for plaintiff, appellant.
    I. In the court of appeals, all appeals are on the same footing, and general costs follow, whether the appeal be from an order or judgment. In the case of White v. Anthony (23 N. Y., 164), Judge Lott, delivering the opinion, says : “ This was an appeal from an interlocutory order, on a question of practice merely. It was heard as a motion, and the appeal was dismissed with costs. All appeals are on the same footing in this court, and general costs follow, in all cases, when allowed at all.” Unlike the practice in the supreme court,.the same practice obtains in court of appeals on appeals from orders, as on appeals from judgments. The cause is noticed and heard in the same manner, and the same costs are taxable (2 Tiff. & S., 130). In the case of Taunton v. Groh, decided by the general term of the first district (9 Abb. Pr. N. S., 453), Judge Ingraham, delivering the opinion on motion for re-adjustment of costs : “ Appeal from an order heard as a motion, under subdivision 4 of section 11 of Code. On such an appeal as this full costs are allowed.” In this case, judgment for costs had been allowed by clerk, precisely as in the case now at bar, and the application was for a re-adjustment on the same grounds, precisely. The same rule was followed in Hall v. Emmons (9 Abb. Pr. N. S., 453, note. Also, 10 How. Pr., 117; See Borst v. Levy, note to Calendar, 1869, court of appeals). The calendars of present court do not mention the rule laid down in this case. Can this be considered as authority ? The case cannot be found in the reports.
    II. The judgment was properly entered. The remittitur was presented to the court at special term, and the judgment of the court of appeals made the judgment of this court (25 N. Y., 484; 9 Abb. Pr. N. S., 453). It followed the. remittitur, almost verbatim. This order was allowable, of course, and no notice was required to the other side (2 Tiff. & S., 130). See note to Voorhies’ Code, 10 ed., p. 539, as follows; “ This order is usually obtained ex-parte” (6 Robt., 497). The court below has no other power than' to simply adopt the judgment of the court of appeals as its own (Macgregor v. Buell, 17 Abb. Pr., 31; 22 Barb., 86; 16 Abb. Pr., 413; 26 How. Pr., 170). It has even been held that such an order, being an order of course, the omission to enter it is only an irregularity, which may be amended (23 N. Y., 347). “ The order making judgment of the court of appeals the judgment of this court, is an order of course, and the costs of the appeal, when adjusted, are inserted in the judgment” (1 Abb. Pr., 262). “No notice necessary” (Ib.). The remittitur having been filed, the costs may then be taxed by the clerk of the court, where the judgment or order appealed from was entered, and he may then enter a judgment to the effect directed by the court of appeals ” (2 Tiff. & S., 130). The court below has jurisdiction of the case as soon as the remittitur is in the hands of successful party (17 Abb. Pr., 293; affirmed by the court of appeals); In this case the remittitur directed that the orders appealed from be reversed, with costs. The judgment of this court was simply that the said judgment of the court of appeals be the judgment of this court, and, as we have seen, this was done. The court did nothing and could do nothing further except to add a direction for carrying the judgment into effect (1 Keyes, 153). The clerk allowed general costs, in accordance with the practice and by authority of the statute (See section 307, subdivision 6, and ante).
    
    III. Were the items of disbursements allowed by the clerk, proper ? (1.) The defendant did not specifically object to the items, nor state his grounds of objection. General objections to each and every item in the bill are not available, without selecting any particular item, or assigning any reason therefor, and the court cannot, for that reason, order retaxation (Cuyler v. Coats, 10 How. Pr., 141; People v. Oaks, 1 Id., 195; Lyon v. Wilks, 1 Cow., 591; 28 How. Pr., 159; 11 Paige, 293; 2 Till. & S., 679). (2.) The items were all proper.
    
      P. V. R. Stanton, for defendant, appellant.
    I. As to the judgment: (1.) There can be but one final judgment in the same action (Code, § 245; Sutherland v. Tyler, 11 How. Pr., 351). There is now no such thing as an interlocutory judgment in any case (Belmont v. Ponvert (3 Robt., 693). The motion made in this case to set aside the “amended complaint” was interlocutory. “ Interlocutory (in law) means,” says Bosworth, in Moza v. The Sun Mutual Ins. Co. (22 How. Pr., 62), “that which decides not the cause, but only settles some intervening matter relating to the cause.” Therefore, the judgment entered on the remittitur was irregular, and was properly set aside.
    II. As to costs : (1.) The case of White v. Anthony (23 N. Y., 164), is not authority. That was a dismissal of an appeal. It was decided in 1861. Then, there was no legislative ' provision as to how appeals from orders should or might be heard ; and all appeals, whether from judgments or orders, in this court, were heard in the same manner, and stood “ upon the same footing. At all events, no distinction is made between them,” as the court say in that case ; and the decision is put cautiously and mainly upon that ground. Then, appeals could not be taken to this court from the class of orders designated by section 349 of the Code, and referred to by the court, and costs on such appeal are prohibited by subdivision 5 of section 307 of the Code. None of the appeals then authorized' could be heard as motions. Since that time subdivision 4 of section 11 of the Code has been enacted, declared by the legislature to be “a new subdivision” (Laws of 1865, p. 1279, and Laws of 1867, p. 1921); in other words, anew law, creating an entirely new class of appeals, theretofore unknown in this court, and declaring how such appeals may be noticed and heard, which did not exist in the previous statutes relating to appeals to this court. “ Such appeals, whether now pending or hereafter to be brought, may be heard as a motion, and. noticed for hearing for any regular motion day of the court.” There is now a clear “ distinction ” between the appeals authorized by that subdivision and the appeals before existing,—they may be noticed and heard as motions. When so noticed' and heard they are but motions. In this view, the case of White v. Anthony does not seem to be in conflict, although, of course, it can only be considered an adjudication upon the law as it then stood, and not upon this new statute. (2.) The question, in the previous appeal of this case, was originated and litigated in the special and general terms, as a non-enumerated motion. It was noticed for hearing and heard here as a motion and must have been decided by this court as a motion, unless the court has power to hear in one capacity, and decide in another. There is no statute authorizing this, and it is presumed that it was not so done in this case. How, then, can a prevailing party have" general costs of appeal in such a case % The right to costs is purely statutory. At common law no costs are given in any case (Clark v. Dewey, 5 Johns., 251; Waterman v. Van Benschotten, 13 Id., 425; The Supervisors v. Briggs, 3 Den., 173; Wickham v. Seeley, 18 Wend., 649). “The Code has established rules regulating costs, which supersede all former rules upon the subject” (Per Johnson, J., Montgomery Co. Bank v. Albany City Bank, 7 N. Y. [3 Seld.], 459; Code, § 303). The only statute that authorizes the court, in its discretion, to give costs of a motion, is section 315 of the Code. The only other section that allows any discretion to give costs on appeal, is subdivision 3, of section 306. Of course that. is inapplicable. (3.) If the case of Borst v. Levy (Court of Appeals Calendar of 1869, p. 5) is recognized, and it is submitted that it should be, founded as it is directly on the statute of 1867, all question here is ended. In the case of the present appeal, the general term made the following decision with the reason apparent on its face : “ Brown t. Leigh. The case of Borst v. Levy seems to be a direct adjudication of the court of appeals governing the question of costs in this case. Ordered, that the plaintiff have costs of motion only in the court of appeals, with stay of proceedings if this decision is taken to that court for review.” The case of Taunton v. Groh (9 Abb. Pr. N. S., 453), is entitled to no respect as authority, for the reason that it follows blindfold 23 N. Y., without noticing the change in the statute, or the case of Borst v. Levy. The criticism of the reporter overruling Borst v. Levy, in his note to Taunton v. Grroh, is hardly sound. Whether he states truly the present usage of the court of appeals, as he calls it, is not known. Certainly, this court has no “usage,” or ought not to have, as to costs, unauthorized by the common or statute law. It has been contended, and may be here, that because, by rule of this court, the cause may be put on the calendar, it is therefore a calendar cause, and the prevailing party is, for that reason, entitled to costs. Mo statute gives costs for any such reason. Calendars are matter of court institution; and all motions may be required to be put upon a calendar, as is the case in the city of New York. But here, if that matter were essential, at the time of the argument the cause was not on the calendar, and the return on appeal had not been filed. (4.) In deciding any motion in a cause pending in this court, the court would not think of giving beyond ten dollars costs. These others are motions, from their inception, all the way up, and, by bringing them here by appeal, which , is the only way they can get here, their nature is not changed. They are still motions. They “may be noticed and heard as motions,”—that is, as motions in this court are noticed and heard. Being motions originally, they retain all of the character and incidents of a motion to the end; and costs, when given, should only be, and can only be (by statute) costs of motion, the same as in motions in causes in this court. The trial of an issue of law,” says Bosworth, J., in Moza v. The Sun Mutual Ins. Co. (22 How. Pr., 64), “may result in a decision which is called an order; an appeal from which will be regarded as a motion, for all the purposes of the costs of such appeal.” The appeal is simply a means of removing or bringing the original motion before the appellate court. It is there argued over again, heard and decided upon the same papers used in the first instance ; the conclusion arrived at as to the law only may be different. It is considered as a motion in the supreme court on appeal from the special to the general term, and there is nothing to change its character in its second step into this court. The legislature evidently intended that it should still be considered in this court as a motion, by providing that it “may be noticed and heard as a motion, on any regular motion day of the court.” On appeal, the controversy, or question, is regarded,—if the whole cause, that; if a motion, that; and the right to costs and the amount depend on the subject matter of the appeal. Here the subject matter of the appeal was a motion, and costs of motion only, can be given. It would be excessively oppressive and unjust in most, if not all instances, if it were otherwise. In this case, the second appeal is now here, and there is another appeal now pending in the supreme court, which may soon be here, and the cause has now only reached the stage of an answer being put in. And so on, twenty motions and appeals in a cause might be brought before trial, and perhaps before issue joined, and if general costs were allowable, the aggregate amount would, indeed, be onerous. But this would have to be submitted to if the law authorized such costs to be given, which it does not. (5.) So- far, the question has been considered without reference to the remittitur, the essential part of which reads as follows: “ The court did order and adjudge that the orders of the general and special terms appealed from in this action be reversed—and that the motion made therein be denied, with costs.” Plainly, from its terms, the original motion, only, was denied, with costs. (6.) Even as a motion, if it be proper to raise the question, no costs ought to have been given. No costs were asked for in the motion papers, and none were given by the general term. The question was new, relating solely to a question of practice. His Honor, Judge Grover, in his opinion, says: " Although the construction of this section has been much discussed, it has not been determined by this court in respect to the questions involved in the present case, and the decisions in the other courts are somewhat conflicting.” The effect of the decision is to allow' a plaintiff by an amended complaint to substitute an entirely new and different cause of action from the one stated in the original complaint, provided it is consistent with the summons. This, beyond question, establishes a new rule of practice; and it never has been usual by any court, in such a case, to grant costs. The court of appeals, as well as other courts, has recognized the rule (Ely v. Holton, 15 N. Y., 500). The conclusion of Judge Grover’s opinion reads as follows : “My conclusion is, that where the right to amend the pleadings is given by section 172, the party may make the same as advised the same as he could the original. This leads to a reversal of the orders of the general and special terms, and a denial of the motion to strike out the amended complaint.” Nothing is said about costs. It is therefore thought that the question of costs was not considered by the court; or that it may be a clerical error in the remititur; or that the same was inadvertently allowed. (7.) If general costs were allowable, plaintiff is not entitled to charge twenty dollars for serving papers ; nor ten dollars denying motion to dismiss appeal, as there was no such motion; nor to the charge of ten dollars, going to Albany. (8.) If the plaintiff was not entitled to final judgment, as he clearly was not, the clerk had no power, or jurisdiction, to adjust the costs. He can only adjust costs in a final judgment (Code, § 311; Nellis v. De Forest, 6 How. Pr., 413). Even direct consent would no.t have conferred jurisdiction (Dudley v. Mahew, 3 N. Y. [3 Comst.], 9). (9.) Therefore, the judgment and costs were irregular and unauthorized, and the order of the special term should be affirmed, with costs to be fixed by the court. The remititur on the previous appeal should also be so far modified as not to allow any costs, for the reason before stated in sixth point.
    
      
       The note referred to states accurately the usage of the court as to placing appeals of this class on the calendar, and the construction put by the court on the provisions of the Code. As its accuracy has been impugned, it is proper to state that it was submitted to and approved by the chief judge before its publication. It is as follows:
      “ The order made in Borst v. Levy, referred to in the points of counsel, in Taunton v. Groh (9 Abb. Pr. N. S., 454), does not represent the present practice of the court of appeals.
      “The rule of February, 1871, is as follows: ' Ordered, That appeals from orders entitled to be heard as motions, may, upon the request of either party, after the filing of the return, be put upon the calendar, noticed, and brought on for hearing on any motion day.’
      “By the present usage of the court of appeals, appeals from orders go upon the calendar; and full costs are allowable the same as in other appeals. If such an appeal were dismissed on motion, costs would be allowed for the motion, and taxable costs on the appeal, as in other cases, up to the time of motion.
      " If, on argument of such an appeal, the court should dismiss it because the order was not appealable, full costs would be allowed, as in other calendar cases.”
    
   Allen, J.

The order from which the plaintiff has appealed does not affect a substantial right, and is not, therefore, appealable to this court. The defendant, by his application, only sought to be relieved from a judgment which he claimed to be irregular and an adjustment of costs which he claimed to be unauthorized. In both positions he was right and entitled to his motion. No judgment could be entered on the remittitur of the order of this court reversing an order of the supreme court. The proceedings were interlocutory, and did not authorize the entry of a final judgment. The Code defines a judgment, and prescribes the mode of its recovery and the formula for its perfection. An entry of a judgment for costs upon an interlocutory order is nowhere authorized. So, too, the clerk only is authorized to adjust costs when they enter into a judgment (Code, §311). In interlocutory and special proceedings the costs are to be adjusted by the judge or court before whom the same may be heard, or in such manner as the judge or court may direct. The court did not decide that the plaintiff was not entitled to the costs of his former appeal, and the order now appealed from did not affect his right to them. It only left him to apply for their adjustment and a proper order for their payment, as he should be advised. Doubtless, the court, on such application, would have adjusted the costs and made the proper order for their recovery; but it was not thought expedient on this application, and no legal or substantial right of plaintiff was violated by the omission.

The former order of the supreme court having been reversed, with costs, the plaintiff, then the appellant, was entitled to full costs of an appeal to this court (Code, § 307).

Appeals to this court from orders are not within the exceptions in subdivision 5 of this section.

The plaintiff was entitled, under the order of this court, to the costs claimed, except costs on motion to dismiss appeal," ten dollars, and expenses to the court of appeals, Albany, ten dollars; and entering of judgment and the execution, one dollar and nineteen cents ; and the court would, undoubtedly, on a proper application, have adjusted them in accordance with these views, and they would have been collected as other interlocutory costs are collected.

But the order of the court merely setting aside proceedings as irregular, did not affect a substantial right, and therefore the appeal must be dismissed, with costs. The costs of the two appeals from orders will about balance each other; and the supreme court can, in its discretion, make the proper order for setting off one against the other, and for the payment of any difference to the party entitled. The order now appealed from does not, in any way, affect the progress or result of the litigation between the parties, or bear at all upon the merits of the controversy; but in this respect it does not differ from the great majority of orders brought here by appeal. Hot one in ten of the appeals from orders to this court, affect in any way the merits of litigations, and only add to the expense of legal controversies, and hinder and delay their final termination.

There appears to be a mania for taking the judgment of the court of last resort upon the most trifling controversies and the most immaterial orders. It is right, therefore, that parties should pay the costs.

Appeal dismissed, with costs.  