
    SUPREME COURT.
    Victor Huber agt. Orrin Lockwood, Sheriff of Erie County.
    Where the plaintiff’s complaint was dismissed by default, at the circuit, prior to the 17th April, 1857, when the amendments of the Code in relation to costs were passed, and the plaintiff procured a stay of proceedings, and on the 6th of May following mo-irnd to open the default, which was denied, with costs;
    
      Meld, that the clerk should have adjusted the defendant’s costs under the Code, previous to the amendment of the 17th April. The cause had been disposed of prior to that time.
    
      Erie Special Term,
    
    
      July 1857.
    Motion for re-adjustment of costs.
    G. Parsons, for plaintiff.
    
    E. Stearns, for defendant.
    
   Marvin, Justice.

At the April Erie circuit the complaint was dismissed, the plaintiff failing to move the trial of the issues joined. The plaintiff obtained an order staying proceedings, and on the 6th May made a motion to be relieved from the default taken at the circuit. The motion was denied with costs. May 11, the costs were adjusted by the clerk upon proper notice, and the items of costs were allowed according to the act of April 17, 1857, amending certain sections of the Code relating to costs.

I think the clerk erred. The action had been disposed of prior to the taking effect of the act of April 17,1857; that act did not go into effect until the 17th April. The right to costs and the amount of the costs were regulated by the provisions of the Code, as they were prior to the 17th April, when the law amending the Code became operative. I have examined the cases cited by the defendant’s counsel. (3 Den. 173; 4 Wend. 210; 1 Duer, 617.) They are not applicable to the question as here raised. The clerk will re-adjust the costs.  