
    HASCALL v. KING et al.
    (Supreme Court, Appellate Division, First Department.
    November 16, 1900.)
    1. Costs—Judgment op Court op Appeals—Remand—Power op Trial Court.
    Where the court of appeals makes an order in an equity case taxing costs to appellant, and the case is remanded to the trial court for the sole purpose of carrying out the judgment of the court of appeals, the trial court has no power to award separate bills of costs to each appellant.
    2. Same—Extra Allowance.
    Where the court of appeals makes a final judgment in an equity case, and the case is remanded for the sole purpose of carrying out its judgment, the trial court has no power to grant an extra allowance, though the question of extra allowance was not raised in the court of appeals.
    Appeal from special term, New York county.
    Suit by Virginia K. Hascall against Vincent 0. King and others. From an order of the special term granting costs and a special allowance to the plaintiff, and separate bills of costs to the plaintiff, certain defendants appeal.
    Reversed.
    Argued before VAN BRUNT, P. J., and HATCH, RUMSEY, McLaughlin, and ingraham, jj.
    William A. Boyd, for appellants.
    James F. McNabor, for respondents Smith and Hilton.
    Peter B. Olney, for respondent Hascall.
   HATCH, J.

This action was brought to procure an adjudication of the will of the late Vincent C. King, declaring the same invalid, and incidentally for a partition of his real estate. The litigation involved, among other things, the validity of the trust attempted to be created by the sixth clause of the will. The trust estate so attempted to be created consisted chiefly of real estate of the value of $150,000. The cotise was tried at special term, where the complaint was dismissed and the will adjudged to be valid, with costs, and an allowance of $1,000 to the defendant executors, payable out of the estate. Upon an appeal to the appellate division, this department, the judgment was affirmed, with costs to the defendant executors and trustees, payable out of the estate. 28 App. Div. 280, 51 N. Y. Supp. 73. The court of appeals (162 N. Y. 134, 56 N. E. 515) modified the judgment, and affirmed the same as modified, “with costs to the appellants in all courts, and to the respondents in this court, payable out of the estate.” The attorney for the plaintiff and the attorney for the defendants Smith and Hilton respectively made motions at special term upon the pleadings and proceedings, and upon affidavits and the remittitur of the court of appeals, for an extra allowance in addition to costs. Upon these motions two orders were made and entered, in one of which the plaintiff was allowed her costs and disbursements, to be taxed by the clerk and inserted in the judgment, and the further sum of $750 allowance; and the defendants Smith and Hilton were also allowed the amount of their costs and disbursements, to be taxed, and the further sum of $250 as an allowance,—the same to be inserted in the judgment, and to be paid out of the estate. By the other order the plaintiff and the appellants Smith and Hilton were allowed their costs in all the courts, and costs to be allowed to the respondents in the court of appeals. Under these orders the plaintiff taxed costs amounting to $466.63 and an allowance of $750, and the defendants Smith and Hilton taxed separate bills of costs amounting to $379.70 and an allowance of $250 each. In each of these bills of costs were included separate costs in the court of appeals, appellate division, and special term. From the first order, and from so much of the second as granted separate bills of costs to the plaintiff and the defendants 'Smith and Hilton, this appeal is taken.

It seems to be now the settled rule that costs in an equity action must be granted to the party entitled thereto, by an order of the court entered upon its judgment, and without such order no costs are awarded. Downing v. Marshall, 37 N. Y. 380; Code Civ. Proc. § 3230. This discretion to award costs is possessed by every court, where the question is properly before it. Herrington v. Robertson, 71 N. Y. 280; Chipman v. Montgomery, 63 N. Y. 221-238. The question of costs, therefore, in an equity action, is one of the issues involved. It is primarily presented at the trial court, and while, as a rule, the appellate tribunals will not interfere with the discretion exercised by the court below, yet, as it furnishes one of the issues for determination by appellate tribunals, it is always before such court for disposition, together with the other issues which the case presents. It is somewhat difficult to determine just when the trial court ceases to possess power over the question of costs, or to determine when the appellate tribunal has fully exercised its unquestioned power, in "equitable actions, upon the subject. It is quite clear that when the court of appeals has determined the question of costs, and directed to whom they shall be awarded, if it has left nothing in this respect for the trial court, no power resides in it to add to or take away. Such court must then enter the judgment as directed, and with such act its power ceases, not only as to the award of costs, but as to all other questions involved therein. The direction as to costs by the court of appeals has in many instances been given in the most general terms, and this has worked a necessity for judicial construction in definition of terms. In Franey v. Smith, 126 N. Y. 658, 27 N. E. 559, the court of appeals said that under section 3238 of the Code that court had the power, upon the reversal of the judgment and granting a new trial, in its discretion, to provide that the costs should abide the event, or to award them absolutely to either party. When they are given to abide the event, that formula always means all the costs of the action, up to and including the decision of the court of appeals. When costs are given by such court, it means the costs in that court to the successful party, and is so limited in cases where the costs are discretionary. The latter direction, therefore, is. to be understood as making, no attempt to control the direction as to costs already made by the court below, or to control its action in respect of such costs as may be thereafter properly awarded. This being the rule, it would seem to follow that when the court of appeals makes specific direction as to costs, in cases where such costs are discretionary, the specific direction controls, and nothing is left but to follow such direction. In the present case the language of its order is, “with costs to the appellants in all courts, and to the respondent in this court.” It is clear that by the use of this language the court intended to control the question of costs, not alone in that court, but in all other courts. The award, in .terms, embraces all courts. The direction awards to the appellants costs. It does not award such costs to each appellant, nor does it authorize a separate bill of costs to each. If such was the intent, it has not been expressed, as this language only awards one bill of costs. The order, therefore, which has awarded separate bills of costs to each appellant, cannot be sustained.

So far as the extra allowance is concerned, it is evident that we must look elsewhere than in the award made by the court of appeals for authority to sustain it. There is nothing in the direction of that court which can by any possibility embrace it. An extra allowance is not included within the term “costs.” It is a sum in addition to costs. The Code, § 3253, describes it as a “further sum.” When an award of costs is made by the trial court, where such cost's are discretionary, no further sum is embraced unless an order therefor is made. The court of appeals has certainly awarded no further sum in this case, nor has it made its award of costs in general terms. It specifically awards costs in all courts to one, and. costs in' it's court to another. The latter direction, however, does not affect the costs awarded to the respondent by the lower courts. This award remains intact. But the award, as to the parties upon which it operates, is a final and full determination of the subject. It was final because the judgment which it rendered was in no sense interlocutory. It is full because it determined all the issues involved, and nothing remained but the perfunctory application t'a the court below to make its judgment the judgment of that court. The latter court was not required to do anything except t'a grant the motion that the judgment might become of record. It will be difficult to find a judgment with more finality of character than this, and it falls within the definition of a final judgment. Code Civ. Proc. § 1200; Black, Judgm. § 41; Travis v. Waters, 12 Johns. 500; Jaques v. Trustees, 17 Johns. 548; Taylor v. Read, 4 Paige, 561; Mills v. Hoag, 7 Paige, 18. It was final as to costs, as it made the specific award and remained silent about an allowance, but this latter fact does not make it less final. Belmont v. Ponvert, 3 Rob. 693, cited with approval in Webb v. Buckelew, 82 N. Y. 560; In re Gall’s Estate, 40 App. Div. 114-118, 57 N. Y. Supp. 835. What in fact has been done in this case is that the court of appeals exercised its discretion and awarded costs, and upon filing the remittitur the special term has exercised its discretion upon the same subject. Did the latter court possess the power? It was held in McGregor v. Buell, 33 How. Prac. 450 (court of appeals), that upon the return of the remittitur it was beyond the power of the court to add any new or independent direction to the judgment, even upon the question of costs. 5 Enc. Pl. & Prac. 205. This case therefore seems to settle, adversely to the respondent, the power of the court to grant the extra allowance which has been given in this case. It is said, however, that this view is contrary to the doctrine laid down in several cases cited by the respondent., Of these the most important is Barnard v. Hall, 143 N. Y. 339, 38 N. E. 301. In that case the complaint. was dismissed at the trial, and the plaintiff appealed. The general term reversed the judgment and ordered a new trial. From this judgment the defendant appealed to the court of appeals, giving the usual stipulation. The plaintiff succeeded, and the court awarded judgment absolute against the defendant, “with costs.” The special term, upon filing the remittitur, entered the judgment as directed, and awarded an extra allowance. Upon appeal this award was held proper. It is clear that this case is not authority in support of the present order. In that case there had never been a judgment settling the plaintiff’s right, and the court of appeals did not determine any question of costs, except in its own court, when the judgment was entered, which for the first time established the plaintiff’s right. The application for costs and allowance was held proper. In effect,' the court of appeals remitted the question of costs, except in its own court,, to the court which it directed to enter the judgment. The direction in that case in regard to costs was general, and was limited to the costs of that court. In the present case it was specific, and embraced all the courts through which the action had gone. In Brown v. Trust Co. (Sup.) 9 N. Y. Supp. 337, the question presented was practically the same as in the last case. See Id., 117 N. Y. 266-274, 22 N. E. 952. In Parrott v. Sawyer, 26 Hun, 466, the action was one at law, and the direction by the court of appeals was the same as in the last two cases. I think this decision was correct, for the reason that in that case the statute awarded the successful party the costs of the action, and, so far as the extra allowance was concerned, the court of appeals had no power over it. Such power resided in the court of original jurisdiction. Wolfe v. Van Nostrand, 2 N. Y. 570. None of these cases, therefore, militates against the doctrine we have announced. Some force may be said to attach to the fact that it is always the court of original jurisdiction which grants the extra allowance, and therefore that authority remains with such court to dispose of such question in all cases. The answer to the suggestion, however, is that in equitable actions, where costs are discretionary, and each court possesses discretion over the subject, the direction must be given by the appellate court to apply for the extra allowance, or the right to apply therefor will be deemed to be denied. If the respondent herein desired to save such right, it was incumbent upon him to procure from the court of appeals a direction permitting the application to be made to the court below. As, however, the court’s action was final upon the subject, the special term was without power to add to it. It is quite probable that there was basis of subject-matter upon which to predicate the extra allowance. Doremus v. Crosby, 66 Hun, 124, 20 N. Y. Supp. 906. For the reasons already assigned, it is not necessary that we discuss that question.

The orders, so far as appealed from, should be reversed, with $10 costs and disbursements, and the appellants’ costs taxed in accordance with this opinion. All concur.  