
    The People of the State of New York, App’lts, v. The New York, Lake Erie and Western Railroad Co., Resp’t.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed January 20, 1888.
    
    Costs—Allowance of costs by the court of appeals—When only to-EMBRACE THE COSTS OF THE COURT OF APPEALS—CODE ClY. PRO., §§ 3340, 3333.
    Where the right to costs is discretionary and is made dependent upon the effect of the direction of the judgment of the court of appeals, in that respect, unless the purpose of that court is in some manner indicated in its decision and direction upon that subject to embrace within the award of costs those of the court below it, the allowance of costs will be treated as-those of the court of appeals only.
    
      Appeal from order of Erie special term denying plaintiff’s motion for retaxation of costs.
    
      D. O’Brien, Attorney-General, for app’lts; George F. Brownell, for resp’t.
   Bradley, J.

The order of the special term granting the plaintiff’s application for a peremptory writ of mandamus was affirmed by the general term, and this order of affirmance was “reversed and motion denied, with costs by the court of appeals. The allowance and taxation of costs to the defendant for the proceedings in this court and in the court of appeals having been made by the clerk, the plaintiff moved the special term for direction that they be re-taxed by striking out all of them except those of the court of appeals. The motion was denied. And the question arises whether the determination and direction of the court-of appeals entitles the defendant to costs other than those of the appeal to that court.

If this cannot be treated as an action in which costs follow the final result as matter of right, the question here must depend upon the effect given to the provision of the decision of the court of appeals allowing costs to the defendant.

This was a case in which an alternative writ would have been required, but for the adoption by the parties of an agreed statement of facts upon which the motion for the peremptory writ was made. And for that reason it is contended on the part of the defendant, that the proceeding was an action for all purposes. Code Civ. Pro., § 2082. And that because costs may be awarded as in actions (id., §§ 3228, 3229), are applicable. In case an alternative writ issue it is treated as an action. People v. Lewis, 28 How., 159; S. C., id., 470; People v. Supervisors, 70 N. Y., 237.

But whether in such a case the party prevailing upon the issues so presented is entitled to costs as a matter of right, does not require any consideration on this review, because no alternative writ was issued and no issues of fact tried, but to obviate the necessity of such writ the facts were relieved from controversy and the motion made directly for the per ■ emptory writ. This must, therefore, be deemed a special proceeding, the matter of costs is discretionary, and the right to them is dependent upon the effect of the direction of the judgment of the court of appeals in that respect. Code Civ. Pro.. §§ 3240, 3333. And unless the purpose of that court is in some manner indicated in its decisions and direction upon that subject to embrace within the award of costs those of the court below it, the allowance of costs will be treated as those of the court of appeals only. In re P. E. P. S., 86 N. Y., 396; In re Water Commissioners, etc., 104, N. Y., 677. It is, however, insisted that inasmuch as the judgment of that court made a final disposition of the case by reversal of the order of the general term and denial of the plaintiff’s motion for a writ with costs, this final direction as to the costs, must be treated as having reference to all the proceedings had in both courts. And in support of that proposition the defendant’s counsel cites Matter of N. Y. W. S. and B. R. R. Co., 23 Hun, 505; In re Hood, 30 id., 472; Jermain v. L. S. and M. S. R. R. Co., 31 id., 550; Von Keller v. Schutling, 45 How., 139; R. and S. R. R. Co. v. Davis, 55 N. Y., 145. And those cases do tend in that direction.

In the latter one, however, the question here does not seem to have been raised or considered. But it is difficult to give to them the effect of establishing the right of the defendant to costs in this court consistently with the views of the court of appeals in the cases before cited. In re P. E. P. S., (86 N. Y., 396), The court states the case as a reversal of the general term, and an affirmance of the special term with costs, and holds that the costs awarded are those of the court of appeals only, and in the Water Commissioners case (104 N. Y., 677), reference is made to Murtha v. Curley (92 N. Y., 359), where the order of the general term was reversed and the judgment of the special term affirmed, and it is distinguished by the fact that it was an action at law in which the prevailing party was as of course entitled to costs, and as the ground upon which that case was decided and supported. And that appears to be the ground of the decision. It would have been unnecessary to observe that distinction if the determination in that court having the terms and effect of disposing of the whole case, carried the general direction of costs through the proceeding in the court below. In view of those cases we think the construction contended for by the defendant’s counsel of the decision and award of costs by the court of appeals is not permitted, and that the court did not, as it might, award costs of any other than that court.

And therefore the order should be reversed and direction given for relaxation by striking out the costs other than those of the appeal to the court of appeals, and without costs of this appeal.

Barker, J., and Haight, J., concur.  