
    John M. Helck, as Administrator, etc., Resp’t v. Henry Reinheimer et al., App’lts.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed February, 1888.)
    
    1. Costs—What costs can be granted by the court of appeals.
    Costs given by the court of appeals are only such as accrue in that court.
    3. Same—Circumstances under which opportunity to ask for will be, GRANTED.
    Where in an equitable action the plaintiff was defeated in the lower courts and so, previous to a favorable decision of the court of appeals, had no opportunity to ask an exercise of the discretionary power of the former court to grant him costs, Held, that after the rendering of that decision, opportunity should be granted him to ask for costs.
    
      John F. Anderson, for resp’t; T. F. Bush, for app’lts.
   Landon, J.

When costs are given by the court of appeals they are only given in that court. Sisters, etc. v. Kelly. 68 N. Y., 628; Matter of Public School, 86 id., 396. As the plaintiff was beaten both in the trial court and at general term, no costs were awarded him, and as the action is an equitable one, he is not entitled to costs, of course, in this court, by virtue of the decision in his favor in the court of appeals. That decision is remitted to this court.

The plaintiff, before the decision of the court of appeals, had no occasion or opportunity to ask for costs in the supreme court. We think he ought not to be deprived of that opporitunity. We think if he desires it, he should be allowed the privilege now.

The event shows that the special term and general term, ■ought to have decided in his favor instead of against him, when the case was first before those courts. If those courts had so decided, they might have exercised their discretion in his favor, by granting costs against these defendants. The special term by its order, from which this appeal was taken, evidently proceeded upon the supposition that the plaintiff was entitled to costs of course in both courts. We do not know whether the special term would, in its discretion, grant costs, and no application has been made to us to exercise ours.

_ Wp must reverse the order, but we do so without prejudice to an application by the plaintiff to the special term for costs upon appeal to the general term, and to this court for costs of fche appeal in this court.

Order reversed with costs, but without prejudice as above.

Learned, P. J., and Ingalls, J., concur.  