
    Augusta G. Genet, App’lt, v. The President, etc., of the Delaware & Hudson Canal Co., Resp’t.
    
    
      (Court of Appeals,
    
    
      Filed December 13, 1892.)
    
    Jurisdiction—Costs.
    In an action upon two causes of action, one at law and the other in equity, the referee dismissed the first and gave plaintiff judgment on the second, with costs. On motion of defendant the fees of referee and stenographer were apportioned between the parties, and the costs of one party set off against the other and judgment given for plaintiff for his damages and the balance of the costs. Both parties appealed to the general term, and the judgment was affirmed upon both appeals. Upon appeal to this court, the judgment which gave plaintiff costs on the second cause of action was reversed, but defendant's judgment so far as it gave it costs was affirmed. Meld, that while the court below had no power to amend the judgment in any matter adjudicated by this court, jyt as the question of costs was not before this court the lower court retained its power to modify the judgment as to costs so as to restore defendant to the position it would have occupied if the costs had not been set off.
    Appeal from, judgment of the New York superior court, general term, affirming order granting motion to vacate order setting off costs and amending judgment so as to make it include costs to which defendant was originally entitled but which were extinguished by the set off.
    
      George G. Genet, for app’lt; Frank F. Smith, for resp’t.
    
      
       Affirming 47 St. Rep., 291.
    
   Per Curiam.

The complaint in this action stated two separate and distinct causes of action, one at law for the recovery of money only, and the other in equity for an injunction and damages. The action was put at issue and tried before a referee, who, after hearing the evidence, dismissed the first cause of action on the merits and gave the plaintiff judgment on the second cause of action, with costs. The defendant then moved that the fees of the referee and stenographer be apportioned between the parties, and that the costs of one party, when taxed by the clerk, be set off against the costs of the other, and that judgment be entered for the balance only; and the motion was granted. Costs of the respective parties were then taxed by the clerk, those of the defendant at $570.44, and those of the plaintiff at $618.67. Thereafter judgment was entered on the referee’s report in favor of the plaintiff for his damages and $48.23, the balance of his costs.

From the judgment thus entered both parties appealed to the general term, which affirmed the judgment upon both appeals, without costs. From the judgment of the general term both parties appealed to this court, and here judgment was rendered as follows ; that the judgment, so far as appealed from by the plaintiff, be affirmed, and the judgment, so far as appealed from by the defendant, be reversed and the complaint dismissed with costs. Thereafter an order was made in the superior court making the order of the court of appeals the order of that court. Thus it turns out that the judgment which gave the plaintiff costs on his second cause of action has been reversed, and he is entitled, therefore, tó no costs against the defendant The judgment, so far as it gave the defendant costs against the plaintiff, has been affirmed, but its costs have been applied upon the plaintiff’s costs and substantially used to pay his costs, so far as they were sufficient for that purpose. The defendant has now made a motion to correct nunc pro tune the original judgment, so that it will award each party costs as adjusted, and thus that the judgment will give the plaintiff costs for $618.67, and the defendant costs against the plaintiff of $570.44. As the plaintiff’s judgment has been reversed the result of the amendment is to restore to the defendant its costs as originally adjusted. It is simply a mode of awarding restitution to the defendant of the costs substantially paid by it to the plaintiff

We have no doubt of' the power of the court below to thus amend its judgment It had no power to amend the judgment in any matter adjudicated by this court, the decision of this court as to such a matter being final. But the question of costs was not before this court and did not enter into the adjudication made by it, and the court below retained its power to modify the judgment below as to costs so as to restore the defendant to the position it would have occupied if the costs of one party had not been, set off against the costs of the other under the order of that court

We think the order is right and should be affirmed, without costs.

All concur, except Beckham arid Gray, JJ., not voting.  