
    Abram Shaver, App’lt and Resp’t, v. Nelson V. Eldred, App’lt and Resp’t.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed April 12, 1895.)
    
    1. Costs—Appeal—County court.
    Under section 3073 of the Code, only the trial fee of twenty dollars, provided for in that section, can be taxed on an appeal to the county court.
    2. Same—Increased.
    Section 3258 of the Code does not authorize increased costs upon an appeal to the county court.
    Appeal from an order, modifying and settling defendant’s bill of costs as taxed by the clerk of the county.
    
      Hull Greenfield, for pl’ff; Charles H. Baker, for def’t.
   Ward J.

This action was commenced in a justice’s court of Cayuga county in 1883. A new trial was taken in the county court, which resulted in a judgment for the plaintiff. Defendant appealed to the general term of this court, and judgment was affirmed. 38 Hun, 632. Defendant then appealed to the court of appeals, where the judgment was reversed, with costs to abide event, and a new trial granted in the county court. Upon the new trial the plaintiff again recovered a judgment. Defendant appealed from this judgment to the general term, and this judgment was reversed, and a new trial ordered in the county court, witli costs to abide event. Upon a new trial in the county court, the plaintiff’s complaint was dismissed, with costs. The county judge before whom the cause was tried made a certificate, as provided by section 3248 of the Code of Civil Procedure, that defendant was entitled to increased costs, under section 3258 of the Code, for the reason that on the trial it appeared that the action was brought against the defendant by reason of acts done in aid or assistance of the superintendent of public works of the state of New York affecting the duties of his office. Final judgment was rendered in favor of the defendant in the county court in the summer of 1894, and the clerk taxed the defendant’s bill of costs at the sum of $945.75. Several objections were taken by the plaintiff’s attorney upon the taxation, all of which were overruled. Those important to be considered were as follows: Two items in bill of $30, each for trials in the county court, lasting more than two days; for making and serving case in court of appeals, $30; for increased costs, under section 3256, $247.50; for copies of stenographer’s minutes of the two trials in the county court, aggregating $23.16. Defendant moved for a review of this taxation before the county court, which was had, and that court made an order reducing the two items of $30 each for trial fees to $20 each, striking out the item of $30 for making and serving case in ■court of appeals, deducting $15 from the item of increased costs ■on account thereof, and striking out $87.50, being the amount charged for increased costs for proceedings in the county court. These deductions left the bill taxed at $793.25, and the clerk was directed to correct it accordingly. Both parties appealed from that order, and the questions are here for review.

The reductions of the trial fees in the county court from $30 to $20 must be sustained. Section 3073 regulates the costs of appeals in county courts, and fixes $20 as the trial fee. The stenographer’s fees, being in the aggregate $23.16, are not taxable as a necessary disbursement in the cause. This was held by the general term of the fourth department in Pfandler Barm, etc., Apparatus Co. v. Sargent, 43 Hun, 154; 5 St. Rep. 413 ; Judge Haight pronouncing the opinion, concurred in by Judges Bradley, Angle, and Ohilds. Section 3256 of the Code of Civil Procedure, prior to 1892, did not in terms specify stenographers’ fees for minutes of testimony as a disbursement; but chapter 185 of the Laws of that year amended that section, and included, as a proper disbursement, “ stenographers’ fees for minutes of testimony before a court, judge, or referee,” and provided that that act should take effect September 1, 1892. It was passed on March 24, 1892. On the 14th of May following, the legislature again amended this section by chapter 592, by simply omitting the provision as to stenographers’ fees, and providing that that should take effect on the 1st day of September, 1892. Chapter 185, therefore, in fact never went into operation, as the legislature, by the subsequent act, in effect repealed it, and indicated as the final judgment of the legislature that stenographers’ fees were not taxable disbursements. Section 3251 of the Code, which provides for amount of costs generally, gives the successful party for making and serving a case $20, and $10 in addition if the case contains more than fifty folios. - By subdivision 5 of that section, the successful party upon an appeal to the court of appeals is to recover before argument $30, for argument $60; and the section plainly contemplates that this is all the costs that shall be allowed except term fees. The bill, as taxed, allowed the defendant these two items in addition to the items complained of, and the county court was right in striking it out.

The plaintiff contends there should be no allowance for increased costs that have accrued upon any of the appeals in which the defendant was appellant, and he relies upon several decisions under the Revised Statutes giving additional costs to public officers, among which are Wheelock v. Hotchkiss, 18 How. Pr. 468, and Dockstader v. Sammons, 4 Hill, 546. The Revised Statutes (volume 2, pt. 3, p. 617, § 24) provided :

“In the following action, if judgment is rendered for the defendant upon verdict, demurrer, nonsuit, non pros, discontinuance of the plaintiff or otherwise in any action, certiorari, writ of error or other proceedings, such defendant shall recover the amount of his taxed costs, and one-half thereof in adition."

This statute has been repealed, and section 3258 of the Code substituted. By that section a defendant in whose favor a final judgment is rendered, upon receiving a proper certificate, is entitled to recover the costs prescribed in section 3251, and, in addition thereto, one-half thereof. The latter section fixes the costs which the successful party is entitled to under section 3228, and other sections of the Code, whether defendant, appellant, or respondent, and the additional allowance is based upon it. Porter v. Cobb, 25 Hun, 184, Burkle v. Luce, 1 N. Y. 239.

The serious question upon this appeal is whetner the county court was right in refusing the defendant the sum of $87.50, for increased costs in the county court. In Porter v. Cobb, supra, the general term of the third department held that such increased costs should be allowed, for the reason that section 3347 embraced county courts within the scope of section 3258. The position of the county court was that, as to appeals and the costs of trials on appeals to the county court, they were regulated and controlled by section 3073, which provides a bill of costs in the county court for such trials, and are therefore excepted from the operation of section 3251. And, as increased costs are only given where costs have accrued under section 3251, they cannot be recovered with relation to said county court trials.' All of the provisions of the Code bearing upon this subject should be considered in determining this question. Section 3258 predicates the additional costs upon the costs recoverable under section 3251. The costs of appeals in county courts are controlled exclusively by section 3073, which provides for all proceedings before notice of trial, $15; for all subsequent proceedings before trial, $10; for new trial of an issue at law, $15 ; for new trial of an issue of fact, $20; for argument for motion for new trial, $15 and term fees. There is no provision in this section for increased costs, and the section is entirely independent of section 3251. Authority must be found in the statute for the imposition of costs. Such authority will not be inferred, and certainly none is contained in the statute cited for imposing additional costs upon the plaintiff in proceedings in county court. The defendant cites Porter v Cobb, as authority for this extra allowance. That court held that such increased costs should be allowed, for the reason that section 3258 came under the second title of chapter 21 of the Code; and as subdivision 13 of section 3347 restricts the application of this second title to the actions in one of the courts specified in subdivision 4 of section 3347, and as the county court is one of the courts enumerated in subdivision 4, therefore, the section giving the increased costs applies to county courts. With all due respect, this reasoning seems more specious than sound. The purpose of subdivision 13 was to restrict the general application of the second title of chapter 21 to certain courts, being the most important courts and courts of record, and should not be construed as doing away with the obvious purpose of the other sections of the Code bearing directly upon the question.

Section 3261, which is a part of the article embracing sections 3251 and 3258, provides: “This article does not affect any provision contained elsewhere in this act or in any other statute remaining unrepealed * * * whereby the amount of costs is specially fixed in a particular case, otherwise than as prescribed in this article.”

Section 3073, providing for costs upon appeal to county courts, is not part of the article embracing sections 3251 and 3258, and, therefore, comes within the restrictive provision of section 3261, above quoted.

The attention of the court in Porter v. Cobb, does not seem to have been called to section 3261, or to the exceptions to the operations of section 3247, stated at the very commencement of that section, and we are unable to concur in this respect with the learned court in Porter v. Cobb.

It is said that no reason exists why the county court should be exempted from the operation of section 3258. The answer is that that suggestion should be addressed to the lawmaking power. There must be some statute authorizing costs before they can be imposed. Equitable Life Assurance Society v. Hughes, 125 N. Y. 108 ; 34 St. Rep. 591.

The order of the county court should be modified by striking out the stenographer’s fees of ° $23.16, and, as modified, affirmed, without costs to either party.

All concur.  