
    MANN against THE NEW YORK CENTRAL, &c. RAILROAD COMPANY.
    
      Supreme Court, General Term; Fourth Department,
    June, 1872.
    Action fob Penalties.—Interest on Debt.—Modifying Judgment.—Construction of Judgment of Appellate Court.
    Where a judgment for a debt and interest,— e. g., for several penalties, —is reversed as to part of the debt, it must be deemed reversed as to the interest on such part. '
    The statute allowing interest to be taxed as costs, does not entitle the plaintiff to retain his judgment as to the interest, after it has been thus modified in respect to the principal recovery.
    The supreme court have power to construe a decision of the court of appeals in accordance with these principles, and to direct the execution to be enforced accordingly. ■
    Motion to set aside execution.
    William J. Mann sued the New York Central & Hudson River Railroad Company, in the supreme court, to recover a large number of penalties against the defendant, for demanding and receiving illegal fare for riding on its cars between Buffalo and Tonawanda, and recovered judgment for one thousand nine hundred and four dollars and fifty-nine cents for penalties and illegal fare, and one hundred and twenty dollars and thirty-six cents costs. The costs included thirty-four dollars and thirty-six cents for. interest on the sum awarded to the plaintiff from the date of the decisions to the entry of the judgment.
    A judgment in a similar case was affirmed by this court and carried to the court of appeals. That court reversed it as to all the penalties except 'one, and affirmed it as to one penalty, together with the illegal fare and the costs in this court (reported in 46 17. Y., 644). This court, at a general term in January, 1872, modified the judgment in this action by conforming it to the decision of the court of appeals in the other action.
    An execution was issued on the judgment as modified, for the penalty, illegal fare, and the whole amount of costs in this court. The defendant offered to pay the costs as taxed, after deducting therefrom the amount of interest taxed on the penalties, as to which the judgment was reversed; and the plaintiff, refusing to make such deduction, the defendant now moved to set aside the execution upon payment of the amount so offered to be paid.
    
      J. M. Willett, for the motion;
    Insisted that inasmuch as the judgment had been reversed as to penalties, except as to one penalty, interest ought not to be allowed to be collected except as to one penalty as to which the judgment was affirmed.
    
      G. W. Cothran, opposed.
    I. The judgment was only reversed as to penalties, and it was “affirmed as to one penalty, and the costs included in the judgment in the court below;” in other words, the judgment was affirmed in all things except as to all penalties in excess of one. By the explicit language of the decision of the court of appeals, in every other respect than as to the penalties in excess of one, the judgment was affirmed. This decision included the sum now sought to be stricken out or disallowed.
    II. This interest was taxed and entered in the judgment as costs. If it became a part of the costs when taxed, then the judgment as to the costs having been distinctly affirmed, this sum should not. _ be inter-foxed with. It became part of the costs. It certainly was no part of the damages. Hot being “ damages,” it must be “costs,” as there are only damages and costs in the judgment. The disbursements when adjudicated, became part of the “costs” as contra-distinguished from the “damages.”- This interest was taxed under 2 Laws of 1869, ch. 807, p. 1890, which reads: “§ 3. It shall be lawful for any party to a suit, who shall have obtained a verdict or a report of referees in his favor, to tax interest upon the amount of such verdict or report as costs, from the time of the obtaining of the same to the time of perfecting judgment therein.” To deprive the plaintiff of this part of his costs is simply to override this plain statutory provision. Both the statute and the decision of the court of appeals are in favor of the plaintiff.
    III. This motion should have been made at the special term.
   By the Court.—Mullin, J.

The motion should have been made at the special term.

The only motions that can properly be made at the general term in'the absence of some statutory requirement or of "a rule of .the. court, are such as relate to proceedings in the general term, such as prescribing the time and manner of transacting its business, the opening of defaults and vacating, modifying or amending rules and orders entered by its direction, and the proceedings for contempts committed in its presence, and proceedings to punish attorneys and other officers for misconduct in office.

There may be and there probably are other cases besides these in which motions may be made in the general term, but if there are, they do not embrace a motion like the one before us.

But we have the power to hear it, and having heard it, we will decide it, protesting, however, against the case being made a precedent which shall bind us to entertain any similar motion.

It is manifest that the plaintiff has no right to interest on the penalties as to which the judgment has ■been reversed, except what may result from the literal interpretation of the decision of the court of appeals.

It is equally manifest that the court of appeals never intended to give the plaintiff such interest. To give it would be both unjust and illegal.

Interest is the compensation given by law to the party entitled to a sum of money for its detention by the debtor, after the time of payment has arrived. It is an incident to a debt, and where there is no debt, there is no interest. When the judgment was reversed as to part of the penalties, the right to interest on such part ceased; and no court has power to require the payment of interest where there is no debt, unless it be as a condition for granting a favor to the person to whom the favor is granted.

I have no doubt but that the judgment of the court of appeals allowing such interest, would be. reversed by a court authorized to review it; but there is no such court, nor is it necessary there should be, to enable us to prevent the injustice attempted in this case.

After a verdict is rendered, there is no power in the court to increase or lessen it. There is no way in which the party in whose favor it is rendered can recover interest on it between its rendition and the entry of judgment, unless it is included in the costs ; and hence the courts, to prevent the injustice of depriving a party recovering a verdict of interest while the defendant is reviewing the proceedings on the trial, permitted such interest to be taxed, with the costs (Vredenburg v. Hallet, 1 Johns. Cas., 27; People v. Gaine, 1 Johns., 343; Lord v. Mayor, &c. of New York, 3 Hill, 430, note a).

In 1844 the legislature passed a law (Laws of 1844, ch. 324), by section 2 of which it was provided, that the party in whose favor a verdict was rendered or report of referees made, might tax interest upon the amount of such verdict or report as costs, from the time of obtaining the same to the time of perfecting the judgment therein.

This provision is incorporated in the Code, and is section 310 of the statute.

Although the interest is inserted in the bill of costs, it is not thereby made costs. Costs are defined by section 303 of the Code as compensation allowed to -the prevailing party by way of indemnity for his expenses in the action. It is this allowance made to the plaintiff in the supreme court that the court of appeals held the plaintiff entitled to, together with the interest on the single penalty, as to which judgment was affirmed.

The plaintiff not being entitled to the interest on the penalties as to which judgment was reversed, the decision of the court of appeals should not be so construed as to give it, unless it is susceptible of no other interpretation.

It is doing no violence to the language of the decision to construe the word costs, as meaning that portion of the amount embraced in the bill of costs which are commonly known as attorney’s costs.

This was unquestionably the sense in which it was used by the court.

It is said this construction would deprive the plaintiff of the interest on the penalty to which he was held entitled. The answer is, that his right to the interest on that penalty does not rest on the decision of the court, but upon the statute.

The court could not give the plaintiff any right to interest after deciding he had no legal right to the principal.

Let an order be entered that the sheriff, upon payment to him of his fees and the amount due on the execution, except the interest on the penalties as to which the judgment was reversed by the court of appeals, return the same satisfied, and the clerk enter satisfaction of the said judgment of record, without costs to either party. 
      
       Present, Mullís, P. J., Johnson and Talcolt, JJ.
     
      
      His Honor was under a misapprehension in respect to the previous proceedings. This particular case never was in the court of appeals; on the contrary, the judgment of the circuit was modified at a previous general term of this court, held at Buffalo, in January, 1873, in accordance with the decisions reported in 46 N. Y., 644. This motion was for a construction of the general term’s own judgment, and hence was properly made at the general term, within, the rule just laid down by the learned judge. The motion was noticed for a special term, and the special term ordered it to stand over and be heard at a general term. This note is made by the counsel for both parties.
     