
    HEWITT v. CITY MILLS.
    
      N. Y. Court of Appeals;
    
    
      December, 1892.
    
      Appeal; within what time.] Where costs were taxed, and retaxed pursuant to Code Civ. Pro., § 3264,—providing that costs may be taxed without notice, but where they are so taxed notice of relaxation must immediately be given by the party at whose instance they were taxed, and “any sum deducted on a relaxation must be credited on the execution, or other mandate, issued to enforce the judgment,”—Held, that the judgment entered before the relaxation of the costs was not altered or affected thereby, and that the service of a copy of such judgment with a notice of entry,before the costs had been re-adjusted was, therefore, effectual to limit the time to appeal from the judgment.
    
    Appeal by plaintiff from an order of the General Term of the Supreme Court, third department, denying plaintiffs’ motion to dismiss the defendant’s appeal to said General Term from a judgment.
    The action was brought by Daniel C. Hewitt and Margaret Hewitt against The City Mills. The facts relating to this appeal are fully stated in the opinion.
    
      Edward P. White, for appellants.
    I. The order is appealable (citing Code Civ. Pro. § 190, subd. 2 ; Clapp v. Hawley, 97 N. Y. 610 ; Thurber v. Chambers, 60 Id. 29 ; Matter of N. Y. Central, etc. R. R. Co., Id. 112).
    II. The appeal from the judgment was not in time (citing Humphrey v. Chamberlain, 11 N. Y. 274; Wait v. Van Allen, 22 Id. 319 ; Code Civ. Pro. §§ 3262-3267 ; Wilson v. Palmer, 75 N. Y. 250; De Mott v. Kendrick, 63 Hun, 112; dissenting opinion of Merwin, J.; Yates v. Burch, 87 N. Y. 409; Matter of Beckwith, Id. 503; Beinhauer v. Gleason, 44 Hun, 556).
    
      Westbrook & Borst, for respondent.
    I. The order denying the motion to dismiss the appeal was right (citing De Mott v. Kendrick, 63 Hun, 112).
    II. The service of the copy of judgment and notice of entry before re-adjustment was ineffectual to limit the defendant’s time to appeal. If plaintiff’s desired to limit the time to appeal they should have served a new copy of the judgment and notice of entry after the costs had been adjusted (citing Sherman v. Wells, 14 How. Pr. 522 ; Champion v. Plymouth Congregational Soc., 42 Barb. 441; Thurber v. Chambers, 60 N. Y. 29 ; Bienhauer v. Gleason, 44 Hun, 556 ; Good v. Daland, 119 N. Y. 153 ; Kelly v. Sheehan, 76 Id. 325).
    III. The order was not appealable to the court of appeals (citing Thurber v. Chambers, 60 N. Y. 29; Cushman v. Brundrett, 50 Id. 296).
    
      
      
        Contra, see De Mott v. Kendrick, 63 Hun, 112; s. c., 43 State Rep. 858 ; 7 N. Y. Supp. 630.
    
   Per Curiam.

On May 23, 1892, the decision of the trial court, and judgment thereon, in this action were duly filed and entered in the clerk’s office of Montgomery County; the defendant’s costs having been taxed and adjusted without-notice. On' the same day a copy of the decision and judgment, with notice of the entry thereof, was duly served on the defendant. On the same day also, a notice of retaxation of the costs was served, and five days later, on May 28, the costs were retaxed without alteration. The defendant appealed from the judgment to the General Term of the supreme court, on August 19, eighty days after the service of a copy of the judgment with notice of its entry. Plaintiffs’ attorney immediately returned the notice of appeal as not having been served in time, and thereafter he made a motion at the General Term to dismiss the appeal upon the ground that it had not been taken in time ; and the. motion having been denied he appealed to this court. The sole ground upon which the learned council for the defendant seeks to maintain that his notice of appeal was served in time, is that plaintiff had procured a re-adjustment of their costs subsequent to the entry of their judgment.

We will call attention to the provisions Code bearing upon this point. Section 3262 provides that costs must be taxed by clerk on the application of the party entitled thereto, and the amount thereof must be inserted by him in the judgment; the next section provides that the costs may be taxed on notice to the adverse party; and section 3264 provides as follows: “ Costs may also be taxed without notice. But where they are so taxed, notice of retaxation thereof must immediately afterwards be given, as prescribed in the last section, by the party at whose instance they were taxed, in default whereof the court must, upon the application of the party entitled to notice, direct a retaxation with costs of the motion to be paid by the party in default. The court may in its discretion, upon the application of a party interested, direct a relaxation of costs at any time. Any sum deducted upon a retaxation must be credited upon the execution or other mandate issued to enforce the judgment.”

It appears from these provisions that where costs are taxed without notice to the opposite party, the amount of them as adjusted, is to be entered in the judgment, and the judgment is to remain unaltered, and is final in form and complete. If costs are retaxed and reduced upon the retaxation, the judgment is not to be changed, but the amount of the reduction is to be credited upon the execution. Here, however, there was no change in the amount of the costs; and, even if there had been a reduction of the costs upon the retaxation, the copy of the judgment and notice of .its entry would have been precisely the same as the copy and notice served. Under the provisions of the Code as they now exist, we think there can be no doubt that the appeal was not in time, and the plaintiffs’ motion should, therefore, have been granted’.

The order of the General Term should be reversed, and the motion to dismiss the appeal granted, with costs in this and in the supreme court.

All the judges concurred.  