
    Augusta G. Genet, App’lt, v. The President, etc., of the Delaware & Hudson Canal Co., Resp’t.
    
      (New York Superior Court, General Term,
    
    
      Filed July 5, 1892.)
    
    Restitution—Costs.
    On the trial of the action the complaint was dismissed as to the cause of action for breach of contract, and judgment given for plaintiff on the second cause for equitable relief. Set off of costs was allowed' and judgment entered for the difference only. On appeal to the court of appeals, the judgment was affirmed as to the first cause of action and the complaint was dismissed as to the other, with costs. > Held, that defendant was entitled, by way of restitution, to the vacation of the order setting off the costs and the insertion in the judgment of the costs originally taxed on the dismissal of the first cause of action.
    Appeal from order granting motion to vacate an order setting off costs and amending the judgment so as to make it include the costs to which defendant was originally entitled, but which were extinguished by the set off.
    The motion was granted by the court at special term, on the authority of the following opinion written on a former motion in this action:
    
      McAdam, J.—The complaint states two causes of action, one at-law to recover $150,000 damages for breach of contract, the other in equity for an injunction and incidental damages. The referee dismissed the first cause of action, but awarded the plaintiff judgment on the second. The plaintiff thereupon taxed her costs at $618.67, and the defendant its costs at $570.44. Set off was allowed, and the plaintiff in consequence entered judgment in her favor for the equitable relief with $48.28 costs (the difference) and thfe defendant for the dismissal of the first count, without costs (the set-off having absorbed them). Both sides appealed; the judgment on the first count was affirmed by the general term, and the second count (modified in form) was- also affirmed thereat, “ without costs to either party.” Both sides again appealed, this time to the court of appeals, which court expressed its judgment in these words: “ That said judgment, so far as appealed from by the plaintiff, be affirmed, and that said judgment, so far as appealed from by the defendant, be reversed and the complaint dismissed, with costs.” The clerk, on application of the defendant, taxed the defendant’s costs in “all the courts.” This was error. He should have taxed the costs to the court of appeals only. 104 N. Y., 677; 5 St. Rep., 744; 126 N. Y., 658; 37 St. Rep., 480. The taxation must, therefore, be reversed, but with liberty to the defendant to move, by way of “ restitution,” to vacate the order for set-off, and for leave to amend the original judgment roll nunc pro tune by inserting therein in suitable language the costs originally taxed on the dismissal of the first cause of action, to the end that the defendant may not be deprived of them. These belong to the defendant as of right, not by the courtesy of the court, but by force of the statute. The judgment made by the court of appeals eliminated not only the plaintiff’s recovery, but the costs allowed to her which were made the subject of set-off.- The new condition, final in its character, seems to warrant restitution to the defendant in furtherance of justice, and to prevent abuse. The control which every court has over its own judgments would seem to sustain the power.
    
      Geo. C. Genet, for app’lt; Matthews & Smith, for resp’t.
   Per Curiam.

—The court at special term had power to order restitution, Wright v. Nostrand, 100 N. Y., 616; Carleton v. The Mayor, 19 Weekly Digest, 354, and as the method adopted to enforce it carried out the necessary effect of the judgment of the court of appeals and rendered it effectual, there is no necessity for condemning it by a reversal.

The order should be affirmed, with ten dollars costs, etc.

Freedman and Dugro, JJ., concur.  