
    TAUTON against GROH.
    
      Supreme Court, First Department, First District; General Term,
    
    
      November, 1870.
    Costs of Appeal.
    On appeal to the court of appeals, from an order, full costs are allowed.
    
    
      This action was an equitable suit for the foreclosure of a mortgage; and it was carried to the court of appeals, on appeal from an interlocutory order allowing a third person to be substituted ‘ as a party, and the defendants to be discharged, on payment of the money into court.
    The appeal was heard as a motion, in the court - of appeals, in March, and determined at the September term, 1869, and the order appealed from was affirmed. The proceedings are fully reported in 9 Abb. Pr. N. S., 385.
    
      i
    
      The opinion of the court made no allusion to costs. The remittitur, which the respondent procured from the court of appeals, and filed with the clerk of the supreme court, contained the words, “Order affirmed, with costs.” On March 25,1870, the respondent obtained an ex-parte order to be entered in the supreme court, and served on the appellant, declaring it to be “ adjudged that the judgment of the court of appeals be the judgment of this court.”
    On April 15, the respondent presented to the court, for adjustment, a full bill of costs, as if on an appeal from a judgment and affirmance thereof; and, against the objections of the appellant’s attorney, the costs were adjusted at one hundred and eighteen dollars and fifty-three cents.
    On May 4, 1870, the attorney for the appellant, on an order to show cause, applied to the special term to have the order of March 25,1870, modified or amended, by striking out the word “judgment” and “ adjudged,” and inserting the word “order;” and also to have the adjustment of'the bill of costs vacated, or set aside, or corrected. This motion was denied with five dollars costs. The following is the opinion of the court at special term, upon which an order was entered :
    Cardozo, J. The remittitur from the court of appeals is the only thing I can look at to see what the decision of that court was. By that it appears that the order was affirmed with costs, which means full costs 
      (White v. Anthony, 23 H. T., 164); and the clerk was therefore right in his taxation of the bill. The motion must be denied, with five dollars costs.
    From the order entered on this decision the plaintiff appealed.
    
      C. B. Wheeler, for the appellant.
    I. The order is erroneous, and should not have been entered ex-parte. The name of the judge who made it is not given in the order. An appeal from it could not be properly argued before three judges who had not heard of it (Const., Art. VI., § vm). No “judgment” has been given whatever.
    II. The defendants (the mortgagors) cannot have any costs, because in October, 1868, their names were, on their own application, struck out of the action. They have no standing in court. The action is still pending in this court, and the decision and order say nothing about costs, and none can be entered against a party in an action like this, unless by the special order of the court, not of the cleric of any court.
    III. This being an action of an equitable nature, the costs are in the discretion of the court in which the action was brought, and cannot be given until the final decree is made (Kreitz v. Frost, 55 Barb., 474; Code of Pro., §§ 304-306; People v. Collier, 3 How. Pr., 379; Heins v. Meyer, 4 Id., 356; Gallagher v. Egan, 2 Sandf., 742; Pennell v. Wilson, 2 Abb. Pr. N. S., 466, 478; S. C., 5 Robt., 661; Whitbeck v. Patterson, 22 Barb., 86; McGregor v. Buel, 1 Keyes, 153; Stargier v. Schultz, 3 Id., 614; Clark v. Tunicliff, 38 N. Y., 58, 61; S. C., 4 Abb. Pr. N. S., 451; McGregor v. Buel, 33 How. Pr., 450).
    IV. In an action for the foreclosure of a mortgage, the costs are controlled by section 306 of the Code, and on a motion in the court of appeals (as this, and the one in which the plaintiff succeeded, were) only motion costs (if any) including all disbursements, can be allowed by any court. Such an appeal is a non-enumerated motion. The case in 23 Af. T., cited by the court at special term, was a common law action, and decided in March term, 1861, and this fourth subdivision of section 11 of the Code, was added by the legislature in 1867, and amended in 1869. It is declared by the legislature to be a non-enumerated motion.
    The court of appeals in 1861 could not control or anticipate the future action of the legislature. The costs on this appeal were controlled by section 315 of the Code. In motions under subdivision 4 of section 11 of the Code, motion costs (ten dollars) only, are allowed (Borst v. Levy, Court of Appeals, Code, 10 ed., 686; Calendar of the Court of Appeals for 1869 and 1870, p. 5; 2 Laws of 1867, p. 1920; 2 Laws of 1869, p. 2197; Code, §§ 306, 315; Travis v. Waters, 12 Johns., 500; Savage v. Darrow, 4 How. Pr., 74; Morrison v. Ide, 4 Id., 304; Eckerson v. Spoor, 4 Id., 361; Mitchell v. Westervelt, 6 Id., 268; affirmed on p. 311; Nellis v. De Forrest, Id., 413; Ellsworth v. Gooding, 8 Id., 1; Van Schaick v. Winne, Id., 5; Bartow v. Cleveland, 7 Abb. Pr., 339; S. C., 16 How. Pr., 364; Pratt v. Ramsdell, 7 Abb. Pr., 340; S. C., 16 How. Pr., 59; O’Hara v. Brophy, 24 Id., 379).
    V. The clerk cannot adjust interlocutory costs on a mere question of practice, in an equity cause like this. He can only adjust costs on a final judgment, unless specially authorized to do so by order of this court. His duties are merely ministerial, —not judicial, —so with the clerk of the court of appeals. It does not appear that the court of appeals gave him any authority to write the words uwith costs” in the remittitur (Code, section 311, and cases cited under this section in 9 ed.; Hicks v. Waltermire, 7 How. Pr., 370; Hunt v. Middlebrook, 14 Id., 300; Torry v. Hadley, 14 Id., 357; Hanna v. Dexter, 15 Abb. Pr., 135; Pinckney v. Childs, 15 Id., 138; Pennell v. Wilson, 5 Robt., 661, Purchase v. Bellows, 16 Abb. Pr., 108).
    
      Alexander Lamont, for the respondents.
    I. The order, making the judgment of the court of appeals the judgment of this court, was properly entered at special term by Justice Ingraham (Plimpton v. Robinson, 25 N. Y., 484)
    II. The order, making the judgment of the court of appeal, the judgment of this court, was the proper one. The courts having no power to render any other judgment than one simply adopting that of the court of appeals (McGregor v. Buell, 17 Abb. Pr., 31).
    III. The costs were properly taxed. There being no difference between an appeal from a judgment, or an order, in the court of appeals (White v. Anthony, 23 N. Y., 164).
    IV. Justice Cardozo properly denied the motion of the plaintiff to modify the order of Justice Ingraham, and to set aside the taxation of costs, and made the proper order in the premises, and the order should be affirmed with costs and disbursements to the respondents.
    
      
      In Hall against Emmons (New York Superior Court, Sp. T., 1870), a similar decision was made. The decision of the appeal in the court of appeals in this case is reported Ante, p. 370.
      The clerk of the superior court allowed full costs.
      Jokes, J.—This is a motion by plaintiff for a retaxation of a bill of costs of the defendants.
      So far as the papers show, the only objection urged before the taxing officer, to the am.ount by him allowed against the plaintiff is, that only ten dollars can be allowed, as the costs of an appeal from an order, to the court of appeals.
      This is the only point presented for my consideration on this motion, which is in the nature of an appeal from the clerk’s taxation.
      It is urged that the appeal was noticed for hearing, and heard as a motion on a motion day of the court of appeals, pursuant to chapter 741 oi the Laws of 1870 ; and that therefore, motion costs only can be
      
        allowed, and consequently the words “with costs,” contained in the remittitur, must be intended to be such costs as are allowed by law to be given on the decision of a motion.
      I think this view is incorrect.
      The act of 1870 gives a right of appeal.
      The Code (§ 307), regulates the costs to be allowed on an appeal to the court of appeals.. That court has held that this regulation applies as well to an' appeal from an order, as from a judgment; and further than this, that general costs follow the dismissal of an appeal from an order on the ground of its non-appealability, after the appeal has been heard and submitted on the merits (White v. Anthony, 23 N. Y., 164). It does not seem to me that the fact that the act of 1870 provides that appeals authorized by it may be heard as motions on any regular motion day, affects the question. An appeal is taken; it is argued and decided. That it was heard on a motion day, as a motion, instead of being placed on the general calendar, and heard when reached in its regular order, does not alter the fact that the appeal itself is heard and argued. The act of 1870 simply provides a more expeditious mode of hearing the appeals given by it, than is provided for the hearing of others.
      Motion for retaxation denied; but, as the question was new, without costs. _
      The same rule has been applied in the second district, at special term.
      The order made in Borst v. Levy, referred to in the points of counsel, in Tauton v. Groh, above, does not represent the present practice of the court of appeals.
      The rule of February, 1871, is as follows: “ Ordered, That ap- ' jieals from orders entitled to be heard as motions, may, upon the request of either party after the filing of the return, be put upon the calendar, noticed, and brought on for hearing on any motion day.”
      
        By the present usage of the court of appeals, appeals from orders go upon the calendar; and full costs are allowable the same as in other appeals. If such an appeal were dismissed on motion, costs would be
      
        allowed for the motion, and taxable costs on the appeal, as in other cases, up to the time of the motion.
      If, on argument of such an appeal, the court should dismiss it because the order was not appealable, full costs' would be allowed, as in other calendar cases.
    
    
      
      See note on p. 454, Ante.
      
    
   By the Court.—Ingraham, P. J.

The case of White v. Anthony (23 N. Y., 164), decides that on an appeal from an order, the costs in the court of appeals are the same as on a judgment. We must follow that case until we have an authorized decision to the con trary. The rule has been, when the court intended to depart from this case, to specify in the order the amount of costs allowed.

The disbursements are erroneous, being charged for as if there were an entry of judgment. Those items, amounting to three dollars and seventy-nine cents, must be deducted, and the adjustment as to the balance affirmed.  