
    COURT OF APPEALS,
    NOVEMBER TERM, 1848.
    James Syme vs. Matthias B. Ward, survivor of William Goadby.
    An assignment of errors being served, before one being filed, held to be irregular. (Rule 4.)
    Where the Plaintiff in error entered an order precluding the Defendants in error from joining in error; also an order reversing the judgment of the court below, with costs ; and the remittitur was issued the same day, held that the remittitur was irregularly issued, that Rule 20 governed the time (ten days) of issuing remittiturs, on judgments taken by default, on common orders under the Rules, as well as judgments by default in calendar causes.
    This court has power to allow costs on a motion in a suit commenced before the 1st of July last. Section 210 of the Code is made applicable to proceedings in such suits, subsequent to the 1st of July, in certain specified courts, but this court is not among that number. (Supp. Code, § 2.)
    The amount of such costs must be settled by taxation. The statute authorising the Supreme Court to make rules regulating the amount of costs on special motions, does not apply to this court. (Stat. 1840, p. 333, § 15, 39; Stat. 1841, p. 321, § 8.)
    In a suit commenced since the first of July last, no costs of motion can be allowed; the moving party must dear the expense of getting rid of the irregula/r proceedings of his adversary.
    
    Writ of error by Syme to remove a judgment against Trim in favor of Ward & Goadby, in the New York Common Pleas. The writ of error was returned and filed with the clerk of this court on the 80th of June last. On the same day, the Plaintiff in error served an assignment of errors, with notice that the Defendant Ward, who had survived Goadby, was required to join in error within, eight days, or be precluded ; but an assignment of errors was not filed until the next day, the first of July. On the 11th of July, the Plaintiff in error entered an order precluding the Defendant in error from joining in error. On the 18th of July, the Plaintiff in error entered an order reversing the judgment of the court below, with costs; and on the same day a remittitur was issued.
    N. Hill, Jr., for the Defendant in error, moved to set aside the order precluding the Defendant from joining in error, and all subsequent proceedings for irregularity.
    S. Stevens, for the Plaintiff in error.
    
   Bronson, J.

The Plaintiff in error was irregular in serving an assignment of errors before one had been filed: (Rule IV.) and the orders precluding the Defendant from joining in error, and reversing the judgment, were, therefore, unauthorised. We are also of opinion, that the remittitur should not have been sent to the court below until the expiration of ten days from the reversal of the judgment. (Rule XX.)

As the Defendant in error has been obliged to come here at considerable expense to get rid of an irregular proceeding, he ought to have costs on the motion, if we have any authority to give them. The 270th section of the Code of Procedure forbids the allowance of costs to the party who makes a motion. But originally that section did not apply to this suit, which was commenced before the first of July. (Code, § 8, 391.) And although it has since been applied to proceedings in such suits subsequent to the first of July in certain specified courts, this court is not among the number. (Supp. Code, § 2.) We, therefore, have power to allow costs. The amount must be settled by taxation. The statute authorizing the Supreme Court to make rules regulating the amount of costs on special motions does not apply to this court. (Stat. 1840, p. 333, 336, § 15, 39 ; Stat. 1847, p. 321, § 8.) If the suit had been commenced since the first of July, the Defendant in error would have been obliged to bear the expense of getting rid pf the irregular proceedings of his adversary.

Motion granted, with costs to be taxed.  