
    William A. Sweet, Pl’ff, v. The City of Syracuse et al., Def’ts. William A. Sweet, App’lt, v. Henry J. Mowry et al., Resp’ts.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed December 9, 1892.)
    
    1. Costs—Equitable action—One bill only.
    In an action in equity, all the defendants having joined in one appeal, and the decision of the court of appeals having been a reversal of the judgment of the general term, and an affirmance of the judgment of the special term, "with costs,” but one bill of costs is authorized.
    3. Appeal—Obder for judgment on remittitur.
    An order for judgment on a remittitur directed it “ with costs of said appeal,” when the provision in the'remittitur was "with costs in this court,” but only the costs in the court of appeals were included in the judgment entered. Held, that there was no occasion for granting an amendment to the order.
    3. Same—Remittitur — Recall—Does not per be nullify judgment
    ENTERED THEREON.
    A recall of a remittitur and a rehearing of the case does not operate
    . per se to nullify the order and judgment entered in pursuance thereof.
    Appeals from orders denying motions to modify and vacate judgments entered upon remittitur of the court of appeals.
    
      Charles H. Peck, for pl’ff; C. L. Stone, W. A. Beach and C. E. Ide, for def’ts.
   Martin, J.

This action was brought by the plaintiff, as a tax payer, against the city of Syracuse, its mayor, clerk, treasurer, the members of its common council, and its water board, to perpetually restrain them from carrying into effect, or exercising the powers conferred by chapter 291 of the Laws of 1889, entitled “ An act to establish and maintain a water department in and for the city of Syracuse,” as amended by chapter 314 of the Laws of 1890. The defendants, constituting the Syracuse Water Board, appeared and answered by their attorneys, and the other defendants appeared and answered by the corporation counsel of the city of Syracuse.

The action was subsequently brought to trial at a special term of this court, and resulted in a judgment dismissing the plaintiffs complaint on the merits, “ with costs separately to the defendant, the city of Syracuse, and the defendants comprising the Syracuse Water Board,” and adjudging that the city of Syracuse recover of the plaintiff $65 costs, and the defendants comprising the Syracuse Water Board, also recover the sum of $85.99 costs.

From this judgment the plaintiff appealed. The general term, modified it by declaring that § 18 of chapter 291 of the Laws of 1889, as amended by chapter 314 of the Laws of 1890, was invalid, and by enjoining the defendants from exercising any powers by virtue of that section, by striking out the award of costs contained therein, and by awarding to the plaintiff the costs of the appeal. Thereupon, the plaintiff, as well as the defendants, appealed to the court of appeals, where the judgment of the general term was reversed, and that of the special term affirmed, “ with costs.”

The record and proceedings in the court of appeals were remitted to this court on June 26, 1891. On the next day the defendants obtained an order making the judgment of the court of appeals the judgment of this court, and the defendants constituting the Syracuse Water Board entered judgment reversing the judgment of the general term, affirming the judgment of the special term, and awarding them $249.53 costs. On August 12,

1891, the costs included in the judgment entered on the decision-of the special term and those included in the judgment entered July 27, 1891, on the decision of the court of appeals, were paid by the plaintiff to one of the attorneys for the defendants constituting the Syracuse Water Board, who executed and acknowledged a satisfaction thereof. As there was a conflict in the affidavit» upon the question, the special term was justified in finding that' the costs were paid by the plaintiff voluntarily and without' protest. Subsequently, and on the 28th day of August, 1891,. the other defendants entered another and second judgment against the plaintiff, reversing the judgment of the general term, affirming that of the special term, and awarding them the sum of $189.63 costs.

On September 19, 1891, the plaintiff made a motion to vacate the latter judgment on the ground that it was irregular in consequence of the entry of the previous one, and that two bills of costs were not allowable. On the hearing of this motion the court made an order that the judgment be corrected by deducting therefrom the sum of seventy dollars, and that the motion to vacate it be denied without costs. From the portion of that order denying the plaintiff’s motion to vacate and set aside the judgment, and to strike out the remaining costs contained therein, the plaintiff appealed. The defendants appealed from that portion of the order which directed the deduction of seventy dollars from the costs thereby awarded.

The first question presented by this appeal is, whether the court properly denied the defendants’ motion to vacate the judgment of August 28, 1891. The only substantial right involved in the motion was the defendants’ right to costs. Were the defendants entitled to two bills of costs ? It will be observed that the only direction made by the court of appeals as to costs was that the judgment of the general term be reversed, and the judgment of the special term affirmed, “with costs.” The costs were in the discretion of the court, as the action was not one'specified in § 3228 of the Code of Civil Procedure. (Sec. 3238.) This being an action in equity, all the defendants having joined in one appeal, and the decision of the court of appeals having been a reversal of the judgment of the general term and an affirmance of the judgment of the special term, with costs, but one bill of costs was authorized. Van Gelder v. Van Gelder, 84 N. Y, 658; In re N. Y, W. S. & B. Ry. Co., 28 Hun, 505; Fischer v. Langbein, 31 id., 272; Everson v. Gehrman, 2 Abb. Pr., 413.

We are of the opinion that the entry of the second judgment was irregular, and the court erred in denying the plaintiff’s motion to vacate it. If correct in this conclusion, it follows that the order appealed from should be reversed, and that the defendants’ appeal should not prevail. It would seem, however, that the judgment first entered should have been amended by the special term by awarding costs to all the defendants, instead of the defendants comprising the Syracuse Water Board. Our conclusion as to the appeal from the order of September 24, 1891, is, that it should be reversed, with ten dollars costs and disbursements, that the motion to vacate the second judgment should be granted, and the judgment entered July 27, 1891, amended so as to award the costs therein to all the defendants, instead of the defendants comprising the Syracuse W ater Board.

Subsequently, and on ihe 27th of October, 1891, the plaintiff made a motion for a reargument of the case in the court of appeals. This motion was granted, and the supreme court was requested to return to the court of appeals the remittitur in the case. On November 4, 1891, an ex parte order was made at a special term of this court directing the return of the remittitur. The case was reargued and again decided by the court of appeals. The proceedings were again remitted to the supreme court, including the.first remittitur, which was in no manner changed, and the second remittitur reversed the judgment of the general term •and affirmed that of the special term, with costs in that court.

Afterwards, and on January 25, 1892, the special term, on motion of the attorney for the Syracuse Water Board, granted an order making the judgment of the court of appeals the judgment of this court and directing judgment in accordance with the provisions of the second remittitur, except that it provided that the judgment should be entered, “ with costs of said appeal,” instead of with costs in the court of appeals. On the following day the attorney for the water board entered another judgment, reversing the judgment of the general term, affirming the judgment of the special term, and awarding to the defendants composing the Syracuse Water Board $102.86 costs against the plaintiff.

On February 16, 1892, the plaintiff made a motion “ to modify said order of January 25, 1892, by making the same conform to the remittitur from the court of appeals, to wit: instead of directing costs of said appeal,’ to read ‘ costs in the court of appeals to vacate and set aside said order of June 29, 1891, and said judgments of July 27th and August 28, 1891, and to direct the restitution to the plaintiff of the sum of $65 and the sum of $95.99, being the costs awarded to the defendants by said judgment of the special term, and the sum of $249.53, being the costs included in said judgment of July 27, 1891, all of which costs have been paid by the plaintiff, and for such other and further relief in the premises as may be just and proper, with costs. The plaintiff claims that said relief should be granted because of the opening of the case by the court of appeals for reargument, and the decision in consequence thereof.” This motion was denied with ten dollars costs to the defendants comprising the Syracuse Water Board and- ten dollars costs to the city of Syracuse separately,” and entered in the office of the clerk of Onondaga county May 10, 1892. From this order the plaintiff appealed. 1

The correctness of the latter order is the only remaining ques-‘ tian to be considered. The contention of the plaintiff is :

1. That the order for judgment on the second remittitur should be amended to conform to the remittitur ;

2. The judgment thereon should give the costs to all the defendants instead of to the Syracuse Water Board;

3. The order and judgments on the first remittitur should be vacated;

4. The costs paid with interest should be restored. These propositions will be considered in the order in which they are stated.

First. We can perceive no necessity for the amendment to the opler for judgment on the second remittitur. The only defect complained of is that its provision as to costs was with costs of said appeal,” when the provision in the remittitur was “ with costs in this court.” Where, as in this case, the defendants have only included in the judgment entered the costs in the court of appeals, the merits of this claim are not apparent, nor is it apparent how the plaintiff has been injured by the omission to follow in the order the precise language of the remittitur. We see no occasion for granting the amendment sought.

Second. We think the plaintiff’s claim that the judgment entered upon the second remittitur should have awarded the costs to all of the defendants instead of to the defendants constituting the Syracuse Water Board is well founded, and that the special term should have granted an order amending the judgment in that respect. As we have already examined the question as to the plaintiff’s liability for more than one bill of costs, no further examination would seem to be necessary.

Third. The- only practical question involved in the plaintiff’s claim that the order and judgments made in pursuance of the first remittitur should be vacated is, whether the defendants were entitled to the costs included in the judgment entered by the defendants composing the water board, July 27, 1891. If the defendants were entitled to the costs included in that judgment, then, when it is amended so as to award costs to all of the defendants instead of a part, the plaintiff will be in no way injured by allowing that judgment as amended to remain, and it will then stand as it should have been entered originally. It is true a question may arise between the defendants as to the manner in which those costs should be divided, but that question is not before us.

The plaintiff’s precise contention is, that wlien a reargument was ordered and the original remittitur returned to the court of appeals, it in effect nullified the order and judgment that were made and entered in pursuance of the first remittitur, and, hence, that the defendants are entitled only to such costs as were awarded by the remittitur filed after the decision upon a re-argument of the case. We cannot think that a recall of the original remittitur and a rehearing of the case operated per se to nullify the order and judgment entered in pursuance thereof. (Murray v. Jones, 18 St. Rep., 916, 918; Newton v. Harris, 8 Barb., 306.) That it worked a temporary suspension of all proceedings under that judgment may be. Doubtless the court of appeals might have so changed its original decision in the case and so amended its first remittitur that it would have been the duty of this court to vacate the judgment and order first entered. It, however, did nothing of the kind. After a re-argument-of the case it in no way changed or amended the original remittitur, but left it remaining as it was first issued, and added to the return a second remittitur in which it re-asserted its former decision with costs in that court. So that the record, when it finally rested in this court, contained an award of costs to the successful party by the court of appeals upon its first decision, and an award of costs in that court when it reaffirmed that decision after a reargument. These circumstances, we thiqk, indicate that the intent of the court of appeals was that the provisions in the first remittitur as to costs should remain unchanged, and that the defendants should have costs in that court upon the reargument. We must assume that if the court of appeals had intended to change, modify or supersede any of the provisions of the first remittitur, it would have indicated that intent in the second.

These considerations lead ns to the conclusion that the judgment entered July 27, 1891, by the defendants constituting the Syracuse water board, should be amended in the respects suggested, and when thus amended allowed to stand.

Fourth. If the conclusions at which we have already arrived are correct, it would seem to follow that the plaintiff is not entitled to the restitution sought. Whether the amount of costs as adjusted by the clerk was correct we need not inquire, as we fail to find that any of the items thereof were objected to before the clerk or any motion made by the plaintiff for a re-taxation thereof. In the absence of proof that any of the items were improperly adjusted after objection by the plaintiff, it is not our duty to examine as to the correctness of such adjustment, especially as the costs have been paid without questioning any of the items. We think the order should be affirmed so far as it denied the plaintiff the restitution asked.

Order of September 24, 1891, reversed with ten dollars costs and disbursements of this appeal to plaintiff, motion to vacate the judgment entered August 28, 1891, granted, and judgment entered July 27, 1891, amended so as to award the costs therein to all of the defendants, instead of the defendants comprising the Syracuse water board.

Order of May 10, 1892, modified by directing the judgment entered January 26, 1892, to be amended by awarding the costs therein to all of the defendants, instead of the defendants constituting the Syracuse water board, and by striking out the costs of the motion awarded to the defendants, and as modified, affirmed, without costs to either party.

Hardin, P. J., and Merwin, J., concur.  