
    SUPREME COURT.
    In the Matter of the Petition of Philip J. Jetter.
    
      Costs in proceedings to vacate assessments.
    
    Proceedings to vacate assessments are not special proceedings, within the purview of chapter 270 of the Laws of 1854, for the purpose of allowing costs.
    
      It seems that the allowance of costs in proceedings of this character is contrary to the established practice of the judges of this district; and, although the court felt compelled, under the circumstances of this case, to allow certain costs and disbursements, it is not to be regarded as a precedent in reference to costs to any amount whatever.
    
      General Term, First Department, March, 1878.
    Appeal from order denying motion to vacate judgment for costs and to retax costs.
    - In June, 1875, the petitioner brought a proceeding, under chapter 338 of the Laws of 1858, to vacate an assessment for paving Spring street, from Broadway to West street, alleging that the resolution and ordinance of the common council authorizing the improvement were not published prior to their adoption, as required by the charter of 1857, and that a previous assessment for paving the same street had been laid upon petitioner’s property, which was duly paid.
    The matter was referred to a referee to take proof. Upon the proofs, as reported by the referee, an order was granted December 22, 1875, vacating the assessment, with costs and disbursements; the amount of the assessment vacated was sixty-three dollars and forty-five cents.
    The order was served on the counsel to the corporation July 19,1876, and was certified to the comptroller September 19, 1876, as proper to be carried out. On the 21st of September 1876, the petitioner’s attorney served a bill of costs, with notice of taxation for the twenty-third, which was taxed on the 27th September, 1876, at the sum of ninety-two dollars and fifty-one cents ($92.51).
    Counsel to the corporation objected to the following items of costs and disbursements, viz.:
    Costs ^or trial issue of fact...................... $30 00
    Costs for proceedings before notice of trial........ Í5 00
    Costs for proceedings after notice and before trial.. 15 00
    Referee’s fees................................. 25 00
    All of which were, notwithstanding the objections, allowed by the clerk, and counsel to the corporation duly excepted.
    On the 16th of October, 1876, the petitioner’s attorney entered judgment against the mayor, aldermen and commonalty of the city of blew York for the amount of the costs and disbursements taxed by the clerk.
    The following are the costs and disbursements as taxed :
    Petitioner’s Bill of Costs.
    Exc. By statute trial of issue of fact............. $30 00
    Exc. Proceedings before notice of trial........... 15 00
    Exc. Proceedings after and before trial........... 15 00
    Disbursements.
    Entering order of reference...............$0 32
    Witness’ fees, asst, list.................... 3 00
    Witness’ fees, Kirby record............... 1 50
    Entering order vacating asst............... 25
    Two certified copies................ 50
    Entering judgment................. 1 00
    Execution.........................'..... 69
    Satisfaction-piece........................ 25
    Exc. Referee’s fees...................... 25 00
    - 32 51
    $92 51
    
      Adjusted on appearance at ninety-two dollars and fifty-one cents.
    
      Wm. C. Whitney, counsel to corporation. J. A. Beall, of counsel.
    I. The judgment entered for the costs is absolutely without warrant in law or practice and should be set aside. The whole power of the court in these matters is derived from the statute of 1858 and the several amendments thereto. Nowhere is there an intimation of the right to enter a judgment for any purpose. The word “ judgment ” occurs but once, i. e., in section 3, chapter 338, of the Laws of 1858, and it is evident, from the context, that it is there used in the sense of “ decision ” or “ determination ” and not in its technical sense. The matter comes into court in the form of a proceeding in reto. without a party defendant, and if the petition is granted the order, which is the conclusion or result of the motion, is not addressed to the mayor, aldermen and commonalty of the city of New York and does not impose any duty upon the corporation, but is addressed to certain officers of the city, the collector of assessments and comptroller, directing them to cancel the assessment. This is the substance of the order, yet the clerk, without any provision to that effect in the order, at the mere request of the petitioner’s attorney, entered a judgment as if in an action against the city. Not only is the judgment entered without warrant of law but in the face of an express prohibition. “No costs, fees, disbursements or allowance shall be recovered or inserted in any judgment against municipal corporations unless the claim, upon which such judgment is founded, shall have been presented for payment to the chief fiscal officer of said corporation before the commencement of an adñon thereon ” (Sec. 2, chap. 262, Laws of 1859, p. 570). In this case as in all cases of the same character no claim or demand was made upon the chief fiscal officer of the city of New York, but the county clerk gives judgment against the city for costs and disbursements.
    
      II. There is here no' question of laches. The city moved to vacate promptly upon notice' of the entry of judgment. No notice was given by petitioner’s 'attorney until the 7th of November, 1877, and the motion to vacate was noticed on the twenty-first, just fourteen days after.
    ■III. There is no authority in law for the allowance of costs against the city in proceedings to vacate assessments. The right to costs is created by statute and wholly depends upon it (Parsons on Costs, p. 1; Want’s Practice, 'ml. 3,453,-et seq.). It is not claimed that the right to costs in these matters is given by the Code but by act of 1854 {chap. 270), being the statute which authorizes appeals 'in special proceedings and which provides, at section 3, “ In special proceedings and on appeals therefrom costs may be allowed in the discretion of the court, and when allowed shall be at the rate allowed for similar services in civil actions ” {Panos of 1854, p. 593). And it is claimed that proceedings to vacate assessments are special proceedings within the meaning of the statute; that they are proceedings special and peculiar' in their character, and as such, for some purposes within the description of special proceedings contained in the second and third sections of the Code, may be admitted as not material to the determination of this, but it is a question by no means free from doubt. It certainly has not been held that they are special proceedings for all purposes within the meaning of the -act of 1854, and they should not be held to be such for the purpose of allowing costs. In the first place costs being the creature of the statutes, and the right to them existing only by express enactment, all statutes allowing them should be strictly construed and so as to extend only to such cases as were clearly intended by the legislature. The statute of 1854 was passed four years before proceedings to vacate assessments upon petition were known; they were first authorized by chapter 338 of the Laws of 1858. They were not the substitute for, and^ did not take the place of, any other proceeding or remedy, and they were not among the special proceedings intended to be aifected by that act. The special proceedings to which the act was meant to apply were well known; they are all to be found in Crary and other works upon practice. In all the “ special proceedings ” then known there were two parties before the court, or if not two parties one party and an estate or fund upon which costs could be imposed. In these proceedings to vacate assessments there is but one party, the petitioner; the mayor, aldermen and commonalty are not made parties. There is no provision for the service of process or notice upon them. The only notice required to be given to any one is to the counsel to the corporation. It is not to the mayor, &c., by service upon the counsel to the corporation, but simply that a party aggrieved may apply by petition upon notice to the counsel to the corporation, and he represents ¡¡the general public, the tax-payers who will be called upon to pay the amount of the assessment which may be vacated by the court rather than the corporation, and it could not have been intended to charge with the costs of a proceeding one who was not made a party to it and was not brought into court.
    IV. If any costs can be allowed in these proceedings they are motion costs merely. It is claimed by the petitioner that the proceedings upon a petition to vacate an assessment are analogous to the proceedings in an action, and that costs should be allowed as in an action. In this view the clerk and the learned judge at the special term agreed, and accordingly costs were allowed for proceedings before notice of trial, for proceedings after notice and before trial, and for the trial of an issue of fact. The first and most obvious answer to this view of the subject is that no proceedings at all analogous to those had in an action occur in a proceeding of this character. It is commenced by the service of a petition, which is usually accompanied by a notice of eight days, that the petitioner will apply at a special tferm at chambers for the relief demanded in the petition. The matter is heard in a summary manner at the special term held for the hearing of motions, and upon ex parte proofs or proofs which have been taken de lene. 
      There are no proceedings before notice of trial, and none after notice and before trial in the sense in which those terms are used in the Code. Ho answer, demurrer or reply, and no trial unless the hearing of every motion is a trial. For every purpose, except that of the allowance of costs, it is treated simply as a motion. The decision of the court is expressed in the form of an order not of a judgment, and an appeal from such decision is heard as a non-enumerated motion or an appeal from an order. The only particular in which these proceedings differ from ordinary motions in civil actions is that in the latter an interlocutory question is disposed of on motion and in the former the whole matter is determined, but the proceedings and the services (for which the act of 1854 says costs are to be allowed) are precisely the same as upon ordinary motions. The amount of motion costs is fixed by section 315 of the Code, and the same amount has been adopted by the courts as the measure of allowance upon appeals from orders; and no other or greater sum was intended to be allowed by the order of vacation.
    Y. Even if the allowance of costs in these proceedings is in the discretion of the court public policy requires that they be refused- The general term has the power to review the action of the special term in allowing costs. In The People agt. New York Central Railroad Company, Denio, Ch. J., said: “An order which peremptorily and finally charges a party with the payment of a sum of money, great or small, which he ought not to pay, or with a greater amount than he ought to pay,- affects his rights, not in a matter of form but in substance ” c(29 N Y., 422). In that case it was held that the decision of the judge at special term granting an extra allowance was reviewable by the general term. Where the matter is in the discretion of the court the discretion of the entire court, as declared by the general term, is intended [Matter of Duff, 10 Abb. [N. S], 416).
    
      
      E. O. Andrews, for respondent.
    I. A proceeding to vacate an assessment under the special act of 1858 (chap. 338, Laws of 1858) is a special proceeding (In re Bohm, 4 Hun, 558; In re Moore, 67 N. Y., 555). Judge Daniels, who wrote the opinion in Bohm’s case, in distinguishing eases of this nature from an action, says: “ What the law provided for was, therefore, a “ special proceeding, as distinguished from an action.” A proceeding under chapter 86 of the Laws of 1813, to determine what compensation shall be made as damages for lands taken as streets in New York city is a special proceeding (Matter of Canal and Walker Streets, 12 N. Y., 406; King agt. The Mayor, &c., 36 id., 182). A proceeding taken under the general railroad act (chap. 140, Laws of 1850) for the appointment of commissioners to appraise the value of land taken for railroad purposes is a special proceeding (N. Y. Central R. R. Co. agt. Marvin, 11 N. Y, 277; see 4 Keyes, 59, overruling Matter of Dodd, 27 N. Y., 629 ; Rensselaer and Saratoga R. R. Co. agt. Davis, 55 id., 145). Costs were allowed in the last-named case, and the clerk taxed full costs as in an action. On appeal the clerk’s decision was affirmed. Our case is precisely like this one. The proceedings taken in all the above cases were authorized by special laws; and it must follow that proceedings taken to vacate an assessment under the special act of 1858 is a special proceeding also. Prior to the amendment of the Code in 1866, no appeal could he to the general term of the supreme 'court, nor to the court of appeals. By the act of 1866 (sec. 11, subdivision 3 of Code) appeals from final orders in a special proceeding were allowed to he heard at general term, and apparently in the court of appeals, for by the amendment of the Code in 1869 (sec. 11, subdivision 3) appeals to the court of appeals under chapter 383 of the Laws of 1858 were expressly prohibited. Thus, proceedings under the act of 1858 must of necessity be “ special proceedings,” or no appeal would he either to the general term or to the court of appeals.
    
      II. Proceedings under the act of 1858 being “special proceedings,” we are entitled to full costs and disbursements, if such are allowed in the order. By section 3, chapter 270, Laws of 1854, it is enacted:
    “ § 3. In special proceedings, and on appeals therefrom, costs may be allowed in the discretion of the court; and when allowed shall be at the rate allowed for similar services in civil actions.”
    When, therefore, costs and disbursements were allowed by the judge, in his discretion, at special term, we are entitled to costs to the amount that would be allowed for similar services in a civil action. The amount that would be allowed in an action has been allowed to us, and no more. It was no wish of the petitioner or his attorney that a referee was appointed by the court to take proof, but the contrary; and it would be a great hardship on the petitioner — who, in this case, was the successful party —■ to have to pay out of his own pocket the referee’s fees and other disbursements.
    III. The appellants have been guilty of laches. The clerk taxed the costs on September 27,1876; judgment was entered on October 16, 1876', and the motion made to retax the costs on Hovember 21, 1877, more than one year thereafter. A motion to readjust costs-should be made promptly at the first special term held for non-enumerated motions, or some reasonable excuse must be shown for the delay (Penfield agt. James, 4 Hun, 69 ; Collomb agt. Caldwell, 5 How., 336; Dresser agt. Wiekes, 2 Abb., 460 ; People ex rel. Dumiler agt. Lewis, 28 How. 470). It is begging the question to argue that, as the notice of entry of judgment was not given until a year after the entry of judgment, that the appellants have not been guilty of laches. The notice of entry of judgment limits the time to appeal from the judgment only, and not from the clerk’s taxation of costs. Ho objections were taken to the disbursements, except to the referee’s fee. Thus the corporation counsel admits that it is proper to enter judgment in cases of this nature.
    
      IV. By section 3, chapter 270 of Laws- of 1854, “ costs may be allowed, in the discretion of the court,” in special proceedings. In this case the court has, in its discretion, allowed costs, and there is nothing before the court on this appeal to show the grounds of such discretion, and it cannot, therefore, be passed upon.
   Brady, J.

The petitioner applied at special term to vacate an assessment for paving Spring street, from Broadway to West street, alleging that the resolution and ordinance of the common council authorizing the improvement were not published prior to their adoption, as required by chapter 1 of the Laws of 1857; and that a previous assessment for paving the same street had been laid upon the petitioner’s property, which was duly paid.

A reference was ordered to take proof of the facts; and, on the coming in of the referee’s report, an order was granted vacating the assessment mentioned, with costs and disburse ments. The amount of the assessment vacated was sixty-three dollars and forty-five cents.

The petitioner proceeded to tax his costs and disbursements, which consisted of the following items, amongst others: Costs of trial of issue of fact, thirty dollars; proceedings before notice of trial, fifteen dollars; costs for proceedings after notice, and before trial, fifteen dollars; referee’s fees, twenty-five dollars; all of which were allowed, notwithstanding the objections of the counsel to the corporation.

It is claimed that the application of the petitioner is a special proceeding under the provisions of chapter 270 of the Laws of 1854, the third section of which declares that in special proceedings, and on appeals therefrom, costs may be allowed in the discretion of the court, and when allowed shall be at the rates allowed for similar services in civil actions. We are decidedly of the opinion that this is not a special proceeding within the purview of that statute.

It involves no issue of fact to be determined in any other form or mode than upon a motion, and, under provisions of the C-ode, a judge sitting at special term, to whom thé motion is presented, may make a reference for the purpose of taking proof, or for the purpose of having the persons, whose affidavits have'been presented to him for consideration, examined orally in regard to the statements there made. It is very clear, therefore, that the charge of thirty dollars for trial of issue of fact, for proceedings before notice of trial, and after notice and before trial, were not properly allowed, and should have been stricken out on the objection of the corporation counsel. A discretion having been exercised, which embraces the other items, it is not in our province to interfere with the allowance secured in that mode.

We regard the allowance of costs in proceedings of this character as contrary to the established, and now universal, practice of the judges of this district; and while we feel compelled, under the circumstances of this case, to allow the amount of the costs and disbursements already mentioned, we desire it to be understood by the profession that this is not to be regarded as a precedent in reference to costs to any amount whatever.

The costs thus stricken out could not he granted, upon the proposition that this is the case of a judgment, or resemblance to a judgment in an action, for the reason that no presentation of any claim was made to the chief fiscal officer of the corporation. The statute of 1859 (chap. 262, sec. 2) declares, in express terms, that no costs, fees, disbursements or allowances shall be recovered or inserted in any judgment against the corporation unless the claim upon which the same is founded was presented to the chief fiscal officer of the corporation before the commencement of the action.

We feel constrained, therefore, with the modification suggested, to affirm the order, without costs of appeal to either party.

Davis, P. J., and Ikgalls, J., concurred.  