
    Smith v. Lynes.
    On appeal to the general term, from a judgment at the special term, the costs to be allowed, are those expressed in the sixth subdivision of section three hundred and seven of the code of procedure.
    June 8th, 1849.
    This case came before the court by way of appeal from the adjustment of costs by the clerk. There had been an appeal to the general term, from a judgment entered on verdict at the special term; and the judgment below was affirmed. The appellant claimed that the respondent was not entitled to costs, on the ground that costs were expressly excluded by the latter clause in the sixth subdivision of section 307 of the code.
    
      C. W. Sandford, for the appellant.
    
      B. W. Bonney, for the respondent.
   By the Court.

There are two classes of appeals in our present practice, first, from orders, and secondly, from, judgments. Section 307 of the amended code, provides that, “ when allowed, costs shall be as follows”Eight classes of cases or stages of suits are then enumerated. The sixth clause of the section reads thus:—“ To either party on appeal, excepting to the court of appeals, before argument, fifteen dollars ; for argument, thirty dollars; but this provision shall not- apply to appeals in cases other than those mentioned in section 349.”

The 349th section, referred to, is the one providing for appeals from orders, as distinguished from judgments. Therefore, if literally carried out, this sixth clause of section 307 would deprive the successful party of all costs on an appeal to the general term, from a final judgment. This must be contrary to the intent of the legislature. There are other clauses in the code, which certainly contemplate the allowance of costs on such an peal in certain cases.

The difficulty is, that the section referred to so distinctly in the sixth clause, is pertinent; it relates to an entire class of appeals ; and it is embarrassing for a court to say that the legislature did not mean what is so plainly and unequivocally written. It is most probable that an error was made in engrossing the code, which causes the difficulty.

The question has been considered in the supreme court, by Judge Barculo, in the second, and by Judge Harris, in the third district; and both have decided that the exception made by the concluding paragraph of the sixth clause must be rejected as repugnant to other parts of the code, and the prevailing party is entitled to costs on an appeal from a judgment. (Livingston v. Miller, 4 Howard’s Practice R., 42; Wilson v. Allen, ib. 54.)

Uniformity of decision on the subject, is very desirable, and we incline to conform our views to those of the judges whose decisions we have cited. We therefore advise the clerk to insert the costs of the appeal in the record of judgment. If this be wrong, it will be an error which may be examined by the court of appeals. i

Order accordingly.  