
    Sarah H. Barnes and Others, Respondents, v. Midland Railroad Terminal Company, Appellant.
    Second Department,
    April 10, 1914.
    Costs — suit for injunction and damages — failure to provide for costs on trial of issue as to injunction — costs on subsequent reference to ascertain damages — extra allowance.
    Where a referee appointed to hear and determine all the issues in a suit for a perpetual injunction and damages, reports that the injunction should be granted and the damages ascertained by a subsequent reference, which report is affirmed by the Appellate Division, which reserves the question of costs upon any further judgment that may be entered, and the same referee is appointed to ascertain the damages, he cannot award costs which he might have previously given under the original order of reference.
    The awarding of costs of the reference to ascertain the damages is with the court, not with the referee, and where the damages found are substantial, the expense of the reference will be imposed upon the defendant, together with the costs of the second reference. But as the costs of the trial of the issues are not awarded, the court is unable to give an extra allowance under section 3253 of the Code of Civil Procedure.
    Appeal by the defendant, Midland Railroad Terminal Company, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Richmond on the 20th day of January, 1913, upon the report of a referee appointed to hear and determine the issues.
    
      Alfred G. Reeves [Alexander S. Rowland and William P. Dalton with him on the brief], for the appellant.
    
      John Brooks Leavitt [Stuart G. Gibboney and Albert H. Atterbury with him on the brief], for the respondents.
   Per Curiam:

Plaintiffs’ right to injunction and damages has been finally determined (193 N. Y. 318).

The issues went to a referee to hear and determine, who reported in plaintiffs’ favor. The referee recommended a perpetual injunction with recovery of damages to be ascertained by a subsequent reference. Yo-disposition was then made, or expressly reserved, as to costs. By the interlocutory decree the ascertainment of damages was referred to the same referee. No question of costs was referred, or mentioned in this order of reference. On the basis of the receipts and earnings before the plaintiffs’ business had been interfered with, the referee reported plaintiffs’ damages at $30,753.43 and directed judgment for that amount. He also recited .that he had not before passed upon the matter of costs, and by this last report awarded plaintiffs the costs and disbursements of the action.

On this appeal defendant urges that the damages found were excessive, and that the referee proceeded on an erroneous theory in estimating the same. A careful examination of the testimony as to the damages supports the conclusion of the learned referee. Where a business is interrupted and loss sustained, evidence as to the falling off in business, with loss of income, all goes to show the injury to the usable value of the property damaged. (St. John v. Mayor, 6 Duer, 315; Bates v. Holbrook, 89 App. Div. 548; Laufer v. Boynton Furnace Co., 84 Hun, 311; Sedg. Dam. [9th ed.] §§ 182-184.)

The matter of costs is more difficult. The learned referee felt this, saying in his last report that he doubted his power at that stage to pass on the question of costs, but concluded to give plaintiffs the benefit of the doubt as to his jurisdiction. This court carefully reserved the question of costs “ upon any further judgment that may be entered.” (Barnes v. Midland Railroad Terminal Co., 144 App. Div. 796.) The original reference was of the whole issues. The referee’s report, when made, stood as the judgment of the court. (Code Civ. Proc. §§ 1018, 1022.) Hence, it was the only tribunal empowered to grant or to withhold discretionary costs (Code Civ. Proc. § 1022), as they are part of the merits to be passed on by such a referee. When he made and filed his first report (which, as to him, was a final report), and interlocutory judgment had been entered thereon, the referee’s power ended, as he became functus officio. (Stevens v. Weiss, 25 Misc. Rep. 457.) His subsequent authority under the second order of reference was to ascertain damages only. By accident, the same referee was again designated, but for a specific purpose of reporting a question of damages, and that only. He, therefore, could not thereafter award those costs which he might have previously given under the original order of reference. (Osborn v. Cardeza, 208 N. Y. 131, 134, 137.)

The subsequent costs of ascertaining damages, however, are not exclusively within the province of the referee. In confirming his report on damages, and passing upon exceptions taken, the court reviews the proceedings before this referee, and may regard the referee’s recommendations as to such subsequent costs. In dealing with the report on damages the court, and not the referee, imposes on the losing defendant the costs incident to the ascertainment of these damages. Here the damages were substantial, and the expense of the reference rightly fell on the defendant. If the costs of the trial of the issues be not awarded, the court is unable to give any extra allowance under section 3253 of the Code of Civil Procedure. Such allowances under sections 3252 and 3253 are “in addition to the costs prescribed” or as “a further sum.” (Kahn v. Schmidt, 83 Hun, 541.)

We conclude, therefore, that the findings of the learned referee as to damages should be sustained, biit the judgment should he modified by striking therefrom the provision awarding an extra allowance and the costs and disbursements of the action from the beginning thereof, and instead that there be allowed to the plaintiffs their costs and disbursements only as incurred by them in the suit since the entry of the interlocutory judgment of March 7, 1911, and that as so modified the final judgment be affirmed, without costs of this appeal to either party.

Jenks, P. J., Carr, Rich, Stapleton and Putnam, JJ., concurred.

Final judgment modified by striking therefrom the provision awarding an extra allowance and' the costs and disbursements of the action from the beginning thereof, and providing instead that there be allowed to the plaintiffs their costs and disbursements only as incurred- by them in the suit since the entry of the interlocutory judgment of March 7, 1911. As so modified the final judgment is affirmed, without costs of this appeal to either party.  