
    SCUDDER a. GORI.
    
      New York Superior Court;
    
    
      General Term, October, 1864.
    Costs.
    Costs must be adjusted, according to the statute as it existed at the time when the verdict was given (and the dismissal of the complaint is in this respect the same as a verdict), as respects all items prior thereto.
    The same costs are given by section 307 of the Code of Procedure, upon an application at special term for a judgment upon a special verdict, or for a new trial upon a case, as upon an appeal from a judgment.
    
    This was an appeal from an order made at special term, directing the costs to be readjusted in conformity with the Code as it stood in May, 1862 (the time when the complaint was dismissed), and deciding that the application for a new trial was a motion, for which only motion-costs should be given. The complaint was dismissed in May, 1862, but the motion for a new trial was not made until May,. 1864, and the costs were taxed under the law of 1864.
    From the order at special term the defendant appealed.
    
      S. W. & R. B. Roosevelt, for the appellant.
    —I. Costs are to be taxed according to the law in existence when the parties became entitled to them. (Crary a. Norwood, 5 Abbotts’ Pr., 219.)
    II. Where there has been one verdict and a new trial, the costs of both trials are adjusted according to the law at the time of the last verdict. (Jones a. Underwood, 18 How. Pr., 532.)
    III. The defendant’s proceedings being stayed by the plaintiff, her right to costs did not accrue until the stay was removed.
    IV. By the Code, the costs of “ an application for a new trial on a case made,” are the same as for an appeal. {Code, § 307, subd. 5.) Such a motion is enumerated, and not a motion under section 315 of the Code. (Mechanics’ Banking Association a. Kiersted, 10 How. Pr., 400.)
    V. Previous to the amendment of the Code, such a motion was considered a trial, and term fees and trial-feeswere allowed. That the term-fees were allowable was decided in the Supreme Court. (Malan a. Simpson, 20 How. Pr., 488.)
    VI. A motion for a new trial on a case is a mode of review, although heard at special term, and is properly included in the section giving costs of appeal.
    VII. The case of Jackett a. Judd (18 How. Pr., 385) was decided before the change of the Code was made by substituting “ or” for “ as,” and while subd. 5 had no meaning whatever.
    
      Samuel W. Judson, for the respondent.
    I. The right to costs is created by statute. Neither party is entitled to costs until some decision or disposal of an action is made by the court, whereby one of the parties acquires the right thereto against the other, under the statute. The decisions are all one way, and are conclusive, that a party is entitled to have his costs adjusted according to the Code, as it existed at the time of the verdict, to wit, at the time of the dismissal of the complaint in the present action, as to all items prior to and including that date. (Supervisors of Onondaga a. Briggs, 3 Den., 173; Moore a. Westervelt, 14 How. P., 279 ; Huber a. Lockwood, 15 Ib., 74 ; Burnett a. Westfall, Ib., 430 ; Jackett a. Judd, 18 Ib., 385 ; Jones a. Underwood, Ib., 532; Cook a. N. Y. Floating Dry Dock Co., 1 Hilt., 556.)
    
      II. There is no decision allowing costs before argument, or for argument, on a motion for a new trial at special term; but there are decisions that they are not allowable. The defendant’s attorneys have charged, and the clerk has allowed costs before argument, and for argument ($60), under the act of 1864, which was clearly erroneous under the said act, and under all prior acts. The act of 1852, § 307, subd. 6, and the acts of 1857, 1858, 1859, 1862, and 1864, subd. 5, all being substantially as follows: “ To either party on appeal, except to the Court of Appeals, and except appeals mentioned in section 349,” &c. Certain costs are allowed before and for argument; and as there is no appeal in this case, the law, either old or new, is not applicable. The subject-matter of subd. 5 is limited to appeals. The reference to section 349 relates to appeals in cases therein mentioned. Subd. 6 is limited to appeals to the Court of Appeals. (Dwyer a. Oppenheim, N. Y. Transcript, Oct. 20, 1864; Oct. 19, Leonard, J. The charges and allowances for argument were, therefore, illegal. Roosevelt a. Brown, 1 Duer, 642; Van Schaick a. Winne, 8 How. Pr., 5.)
    III. The defendant’s attorneys did not charge or claim fees for the trial of an issue of fact, or of an issue of law, before the clerk, nor before this court at special term. Title 8, ch.. 1 of the Code, §§ 245-247, direct how to obtain judgment, when there is no answer or demurrer, to wit, no issue to be tried; ch. 2, §§ 248-257, relate to issues and their mode of trial ch. 3, §§ 258-265, relate to trial by jury; ch. 4, §§ 266-269, to trial by the court; ch. 5, §§ 270-273, to trial by referees ch. 6, §§ 274-282, to the manner of entering judgment.. The motion for a new trial was not a trial, and did not come within the above laws.
    IV. Only $10 costs are allowable for a motion for a new trial. (Moore a. Cockroft, 9 How. Pr., 476; Potsdam & W. R. R. Co. a. Jacobs, 10 Ib., 453; 18 Ib., 385, 392, &c., cited above.)
    V. Term-fees ought not to have been allowed. The Code-plainly contemplates that term-fees are not to be allowed, except when a cause is on the circuit or special term for trial, or on the general term calendar for argument. The acts of 1862 and 1864, section 307, subd. 7, as well as some of the prior acts, use the expression, when the cause is not “ tried,” &c. Subdivisions 2, 3, and 4 of § 307 speak of trials. It is not the intent of the law to charge term-fees on motions, even if they are placed on the calendar. The remedy of each party in such case, if he does not consent to its being put off, is to move it on, or to move to dismiss it.
    VI. As the right to costs is only granted by statute, neither flie clerk nor the court have any authority to impose costs upon a party, unless the statute clearly authorizes it. If the statute is ambiguous or difficult of construction, it must be construed in favor of the opposing party, who is to be mulcted.
    
      
       Compare Lawrence a. Smith, Ante, 197.
    
   By the Court—Monell, J.

I am constrained to adhere to the case in this court, Moore a. Westervelt (14 How. Pr., 279), Avhich holds that the costs must be adjusted according to the Code as it existed at the. time of the verdict, as respects all items prior to that date. It is there said that the “ recovery/’ which gives the right to costs, mentioned in the statute, means the “ verdict,” and not the judgment. This decision was made at general term in July, 1857, and no amendment of the Code affecting this question has since been made. Crary a. Norwood (5 Abbotts’ Pr., 219), decided about the same time, holds the same way. Whether these cases were well considered and supported by authority is not for us to inquire. Uniformity of decision upon questions of this natnrg, as well as respect for the views of eminent judges comprising a former gen eral'term of this court, require that Ave should regard the decision as binding upon us.

The right to costs being fixed by the verdict (or in this case by the dismissal of the complaint, which in principle is the same thing), the question is. not affected by the stay of proceedings. The right to costs had become complete before the stay, and they must be adjusted in accordance with the then existing law.

The fifth subdivision of section 307 of the Code, as it stood in 1852 (then subd. 6), gave to either party on appeal, except to the Court of Appeals, a prescribed rate of compensation, but declared that its provisions should not apply to appeals from orders. At that time, under section 349, an appeal could be taken from an order granting or refusing a new trial, but no costs, except a motion-fee, could be given. In 1857, section 307 was amended by adding to the fifth subdivision, “ and the same costs shall be allowed * * * in cases ordered to be heard in the first instance at general term.” * * * In 1858 the subdivision was further amended, so that the same read, “ and the same costs shall be allowed” * * * .on application for judgment, upon special verdict, or upon verdict subject to the opinion of the court, as for a new trial on a case made, and in cases where exceptions are ordered to be heard in the first instance at a general term. In 1862 the section was again amended, by striking out the word as,” and inserting the word “ or,” so that it should read, “ or for a new trial on a case made.”

The amendment of 1858 was difficult of construction. The word “ as” conveyed no idea of what was intended. Whether on application for judgment upon a verdict subject to the opinion of the court, the same costs were to be awarded as were given on a motion for a new trial on a case, or whether the word “ as” was to be construed into, as by subsequent amendment it was changed into “ or,” it was difficult to determine. The latter liberty was taken by a judge at special term, in Jackett a. Judd (18 How. Pr., 385, 393).

My construction of the section as it now stands is, that the Legislature intended to give the same costs as are given on an appeal from a judgment, without reference to the place where the application is to be made in the four cases, viz.:

First. An application for j udgment upon special verdict.

Second. Upon verdict subject to the opinion of the court.

Third. Upon an application for- a new trial on a case made.

Fourth. On exceptions ordered to be heard in the first instance at a general term.

Two of the four cases, viz., application for judgment, upon a special verdict and for a new trial on a case-, must be made at special term, and cannot be made at general term. {Code, §'265.)

The other two, viz., verdict subject to the opinion of the court and exceptions, must go to the general term, and cannot be heard at special term, (lb.) When the first two cases are carried to the general term, it can only be by appeal from-the judgment upon the special verdict or from the order granting or refusing a new trial.

Certainly, the exception of cases mentioned in section 349 can have no application to motions for judgment upon a special verdict, and unless it was designed to give that class of cases the costs prescribed by section 307, although made at special term, then so much of the amendment was utterly useless. The literal reading of the section is, that the parties shall have the same costs as are allowed on appeal, on an application for a new trial on a case made. As such application must be made at special term, it follows that the costs of an appeal are to be awarded at the special term. If the application for a new trial on a case stood alone in the section, I might be inclined to yield to the opinion that it was simply intended to take those cases out of the exceptions of appeals from orders. But the section includes, and places in the same condition, applications for judgment upon special verdict; and it is quite clear that the costs on such motions are the samé as on an appeal. If the judge in Jackett a. Judd, silera, had not emphatically said that only motion-costs were allowable on a motion for a new trial at special term, I could adopt the whole of his subsequent reasoning as illustrating the view I have taken of the question. But that learned judge did not notice that motions for judgment upon a special verdict, or for a new trial on a case, can only be made at special term, and therefore, unless it was intended to give these costs at special term, they cannot be given at all. While he admits that it was intended to give the same costs as on an appeal from a judgment in the four cases mentioned, he confines the right to award the costs to the general term, whereas, in two of the cases, the motions cannot be made at general term at all.

Heither view is free from difficulty. The section is artificially drawn, ambiguous, and capable, perhaps, of either construction ; and with other judges I can frankly say, I am not entirely satisfied with either. There is as much reason for giving these costs at special term as to confine the right to them at general term, if the motion could be made there. The motion at special term involves the preparation of the case, and frequently as elaborate and solemn argument as at general term; and it would .seem to require a similar compensation.

My conclusion is, that upon a motion for a new trial upon a case made at special term, the parties are entitled to the same costs as upon an appeal from a judgment.

The taxation appealed from must be readjusted upon the principles here stated. 
      
       Present, Robertson, Ch. J., Monell and Garvin, JJ.
     