
    JOHN PATTEN, Plaintiff and Respondent, v. WILLIAM J. STITT, et al., Defendants and Appellants.
    I. Remittitur from court of appeals.—Power of the court below upon.
    1. The court below is not confined to rendering a judgment simply adopting the judgment of the court of apneals as its own.
    3. The court below must carry into effect the judgment of the court of appeals, and take such further proceedings as may be necessary for that purpose, prior to the entering of judgment on the remittitur.
    3. Gonstruction of judgment of court of appeals by court below.
    
    
      a. In order to determine whether any further proceedings are necessary to be taken to carry into effect the judgment of the court of appeals, the, court below is authorized to examine into, and determine upon, the effect of the provisions in such judgment.
    4. Costs of special and general term, when, allowed by the cour below, although the judgment of the court of appeals contains a clause, “ without costs to either party.”
    
    1. Allowed to plaintiff whose complaint was dismissed on the trial, with costs, when the judgment on such dismissal has been reversed by the general term and a new trial ordered, with costs to abide th$ event, and the court of appeals (defendant having stipulated under section 11) has in all things affirmed the general term order granting a new trial, and has rendered judgment absolute for the plaintiff for part only of the relief demanded in the complaint, and without pi'ejudice to the respective rights of the parties in respect of a pa/rt of the relief demanded, and without costs to either party.
    
    
      a. This, although the action was one for equitable relief.
    Before Barbour, Ch. J., Monell and Freedman, JJ.
    
      Decided May 4, 1872.
    The history of this case is as follows : The action was brought to restrain the defendants from using the rear wall of the plaintiff’s building, by placing beams or timbers therein, and from building upon or occupying a certain piece of land in the rear of such wall. Upon the report of a referee, judgment was entered dismissing the complaint.
    On appeal to the general term, the court determined that the judgment should be reversed, and a new trial had, with costs to abide the event.
    The record of this determination was in form as follows :
    “It is Ordered, that the said judgment so appealed from be, and the same is hereby in all things reversed upon questions of fact as well as upon questions of law, that the order of reference be vacated, and that a new trial be had, with costs to the appellants to abide the event.” •
    On appealing to the court of appeals, the defendants stipulated, under section 11 of the Code, that if the decision there should be against them, the court might render an absolute judgment in favor of the plaintiff; and a judgment was there rendered in the following words: “This action having been duly argued by the counsel for the respective parties, it is ordered and adjudged that the. order granting a new trial be affirmed, and judgment absolute for the plaintiff restraining the defendant from inserting beams, &c., in the walls of plaintiff’s building, and without prejudice to the claim of either party to the land and premises in dispute, and without costs to either party.” Upon remittitur from the court of appeals, a judgment was entered in this court, at special term, on the application of the plaintiff, ex parte, making the judgment of the court of appeals the judgment of this court, and perpetually enjoining and restraining the defendants from inserting beams, &c., into the plaintiff’s building, and directing that the plaintiff have execution against the defendants for three hundred and sixty-seven dol Iars and seventy cents costs (being for all costs and disbursements of plaintiff up to and including the argument at general term); but no special reservation of the rights of the parties, or either of them, was made in that judgment. The defendants then moved, on notice, at special term, to strike from the judgment the provision in regard to costs, and to insert in lieu thereof the words, “without costs.” That motion was denied, and the defendants brought this appeal from the order thereupon .entered.
    C. M. Marsh, attorney, and Thomas L. Ogden, and Samuel E. Lyon, of counsel for appellants, argued :—
    I. When the cause was brought to the court of appeals, there was no judgment below in any respect favorable to the plaintiff or awarding costs to him. 1. The judgment upon the trial before the referee was in favor of the defendants. 2. The order of the general term from Which the appeal to the court of appeals was taken, was hot a judgment, but simply an order of reversal, and for a new trial, with costs to the plaintiff to abide the event, -and the event of the action, as pronounced by the court of appeals, in its final determination of the rights of the parties, was the failure of the plaintiff in the main part of his suit, while obtaining a small part of the relief demanded, but expressly without costs, and the order of the general term was only affirmed so far as related to a new trial.
    II. The judgment of the court of appeals does not award costs to the plaintiff directly or by implication, but expressly orders that he shall not have them. It is distinctly “ without costs to either party.” To supply any limitation or exception is to alter the meaning and language which are free from ambiguity (See Macgregor v. Buell, 17 Abb. Pr. 31).
    . III. The construction put by the appellants upon the judgment pronounced' by the court of appeals, is exactly in accordance with the uniform and established rule that in equity cases, no costs whatever are to be awarded to either party, where the claimant succeeds in part, and fails as to the residue of his claim. The language used by the court should be construed accordingly, and should not, by a strained construction, be made to violate well established principles of equity (Ten Eycke v. Holmes, 3 Sandf. Ch. 428 ; Spencer v. Spencer, 11 Paige, 299).
    IV. The court of appeals has complete control over the whole subject of costs in an action, in which it is called upon to render judgment absolute. The right to control costs is included in and necessary, to the full exercise of the powers conferred on the court of appeals by section 11 of the Code. Certainly any order of the general term for costs, can be modified or reversed by the court of appeals.
    V. .The mere omission of the court of appeals to award costs below to the plaintiff, would be fatal to his claim, unless he is entitled to them as a matter of legal right, and can urge such claim after the cause has been finally determined, and the judgment remitted to this court to be enforced.
    
      "VI. The plaintiff is not entitled to costs, as a matter of legal right under section 304'; of the Code but this, being a suit for an injunction, and of an equitable character,' falls within section 306 of the Code, and costs may be allowed or not to either party,. in the discretion of the court. Section 304 must be construed in connection with sections of the Code previously cited, and not as giving a party an absolute right to costs beyond the control of, and. inconsistent with powers conferred on, the court of appeals ; nor can it be presumed that this section was intended to include actions of an equitable nature, and to take costs in such actions out of the discretion of the court (Barker v. White, 3 Keyes, 617; Staiger v. Schultz, Id. 614 ; Van Riper v. Poppenhausen, 43 N. Y. 68 ; Daniels v. Lyon, 5 Seld. 549 ; Clarke v. Tunnicliff, 38 N. Y. 58). From the cases cited above, it will be seen that the court of appeals construes section 304 of the Code so as not to include, contrary to the intent of the legislature, actions the costs of which are regulated by other special statutory provisions, or suits in equity, the costs in-which have always been in the discretion of the court.
    VII. Moreover, there has not been a “recovery ” by the plaintiff within the meaning of section 304. 1. Obtaining an injunction is not a “recovery.” The term “ recovery ” implies a judgment for something tangible and substantial, and not the mere obtaining relief of a negative character. 2. The recovery under the section must be one resulting from, and involving a decision of the claim of title. “When the section speaks of a recovery in an action where a claim of title arises, it means that such claim of title shall arise on the entire pleadings, and that the recovery shall be in hostility to such claim.” See rule as stated per Mr. Justice Weight, in Burhans v. Tibbits (7 How. Pr. 75). The partial relief obtained by the plaintiff is entirely independent of the claim of title; which arose on the pleadings, and is declared so to be by the judgment of the court of appeals, which is distiuctly “ without prejudice to the claim of either party to the lands and premises in dispute.” 3. This action is not of a description in which there could have been a recovery of real property. The language of Judge Rapallo, in delivering the opinion of the court of appeals in this case, is conclusive on this point. He says: “ The land within that space (the space between the hotel wall and the boundary line between the lands of Patten and Fiedler, being the land in the possession of the defendants as tenants of Fiedler) whatever it inay be, is in the possession of the defendants, and this is not the proper form of action for its recovery. The complaint is framed wholly for equitable relief by injunction, and was triable by the court. It prays that the defendants be restrained from occupying, using or building upon the space of ground, the title to which is claimed by the plaintiff. Such relief cannot be granted. The plaintiff, being out of possession, must establish his title in an appropriate action. Such an action is properly triable by jury, and the relief to which the plaintiff will be entitled in establishing his title, is a judgment for the possession of the land. An injunction against occupying the land in dispute cannot be substituted for an action of ejectment.”
    YIII. The order or judgment of the special term of the superior court does not correctly recite the judgment of the court of appeals, for it omits the words ‘ ‘ without costs to either party.” This is a vital defect, as it follows from the omission that what is recited as the judgment of the court of appeals, and made the judgment of the superior court, is not the judgment of the court of appeals, but substantially differs from it.
    IX. The superior court had no power to render any other judgment than one simply adopting that of the court of appeals as its own. It could not grant any costs not allowed by the court of appeals (Macgregor v. Buell, 17 Abb. Pr. 31).
    X. This court cannot now question, in this action, the power of the court of appeals to render judgment “ without costs to either party.” The court has assumed such power, and ordered judgment accordingly, and it is res adjudicata between the parties. The plaintiff had an opportunity to present his claim for costs before the court of appeals in the argument, and the determination of the court of appeals on that point is final.
    
      C. & S. T. Jones, attorneys, and Charles Jones, of counsel for respondents, argued:
    I. The appeal from the judgment must be dismissed. 1. The judgment is a judgment of the court of appeals, and the general term of this court cannot review it. 2. Section 348 of the Code enumerates the cases where an appeal may be had to the general term. “ An appeal upon the law may be taken to the general term from a judgment entered upon the report of referees or the direction of a single judge of the same court in all cases and upon the fact when the trial is by the court or referees.” (a.) The appeal in this case is from a judgment of the court of appeals. (5.) That this court has no jurisdiction of such an appeal is shown by the fact that neither the Code nor the rules provide any means for making such an appeal. Buie 41 «recognizes the' fact that the only cases where appeals can be taken to the general term are those set forth above (“or to review by appeal or otherwise a trial by jury, by the court or by referees ”). 3. The fact that the judgment making the judgment of the court of appeals the judgment of this court was made by a judge of this court does not affect the question. (a.) The judge'had no discretion ; he was bound to enter the judgment; his act was merely ministerial; he acted, not as a judge of this court, but as an officer of the court of appeals, obeying its mandates, and that court should correct his errors (if any were made) (Macgregor v. Buell, 17 Abb. Pr. 31; Griswold v. Havens, 16 Id. 413).
    II. The appeal from the order should be dismissed. 1. The motion was to amend or alter a judgment of the court of appeals. That could not be done by this court, and the motion was properly denied, (a.) The judgment was entered in this court in obedience to the mandate of the court of appeals. That court then should correct all errors in its judgment, if there be any. 2. The only objection to the judgment was, that too much costs were allowed. This, however, was not a motion for re-adjustment. 3. The only ground on which the defendants could possibly appeal from this order, is found in subdivision 3 of section 349 of the Code, but even that will not sustain an appeal, for the order dpes not in itself affect a substantial right, (a.) The judgment of the court of appeals, as entered, gave the costs to which defendants object. The order • 'id not give them, nor did it refuse them ; it simply efused to alter a judgment of the court of appeals lready entered. (5.) The judge was bound to refuse he order; he had no discretion, for any order pretendng to alter the judgment would have been null and oid.
    III. If the defendants are entitled to any relief they ave mistaken their remedy ; it should not" have been y motion in this court or by appeal from the judgent, but by motion in the court of appeals. 1. The ling of the remittitur does not take away the authority f the court of appeals (Palmer v. Lawrence, 5 N. Y. 55). 2. Had defendants made their motion in the urt of appeals that court would have requested this urt to return the remittur, and this court would have mplied with the request (Selden v. Vermilya, 3 Sandf. 5; Bogardus v. R. Manufg. Co., 1 Duer, 593; urray v. Blatchford, 2 Wend. 221). 3. The court which gave the decision is plainly the one to interpret it, if it require interpretation.
    IY. If, however, this court should hold that the appeal is proper and can be heard here, then the order and judgment appealed from must be sustained. 1. The decree of the court of appeals was for judgment affirming the order of the general term, and giving judgment absolute against defendants, without costs. 3. The decree must be construed as to its meaning with regard to the power of the court. 3. The court of appeals had no power to deprive the plaintiff of costs at trial term or at general term, inasmuch as a claim of title to real property arose on the pleadings, and was certified by the court to have come in question on the trial (Code, § 304). 4. It is doubtful if even the costs of the appeal in the court of appeals were in the discretion of that court (Code, § 306). The court did not here order a new triai, for it gave judgment absolute for plaintiff, nor did it reverse in part and affirm in part a judgment, for the only judgment below was a dismissal of complaint, and that was re^ versed. The plaintiff, however, has accepted the conrt’s construction as to the costs of appeal, and has, not claimed them.
    Y. Though it cannot be doubted that a claim o: title to real property arose, the defendants may objee that it did not necessarily arise. 1. The Code doei| not require that it shall necessarily arise (sec. 304)! 3. But if that is the meaning of the section, then in thii case it necessarily arose, (a.) The defendants inserte beams into the rear wall of plaintiff’s building, ciar ing that one-half of it, and all the land in the rear of i belonged to them. (6.) The plaintiff, claiming owne: ship of the wall, the ground it stood on, and part of thj ground in the rear of it, brought an action for an i: junction. (<?.) The reieree below decided that defen ants were owners of one-half of the wall, {d.) Th| court of appeals examined the question of title, and actually decided that the whole wall belonged to plaintiff, and gave him an injunction.
    VI. The only question now remaining to be considered under section 304 of the Code is, Was there a recovery ? 1. The plaintiff in his complaint asked that < “the defendants, their servants and agents, be perpetually enjoined from using in any manner the rear wall of the said hotel building, and from placing beams or timbers therein.” 3. The judgment of the court of appeals is, that “judgment absolute be rendered for plaintiff, restraining the defendants from inserting beams, &c., in the wall of plaintiff’s building.” 3. As to the other matters which were put in the complaint, they did not belong to it, and he had a recovery of everything to which he could possibly be entitled in this action.
    VII. The construction of the judgment of the court of appeals, considered with regard to their powers, clearly shows that the intention of the court was to deprive the plaintiff of the costs of that court only. 1. From the fact that the court would otherwise transcend its powers. 3. From the fact that the court orders that the order of the general term be in all things affirmed, and gives judgment absolute for plaintiff, (a.) The order of the general term gave costs to plaintiff to abide the event, and that order was affirmed. (5.) The event was a judgment absolute in favor of the plaintiff.
   By the Court.—Freedman, J.

I concur with the learned chief justice that this court is not absolutely bound, upon the filing of a remittitur, to render judgment by simply adopting the judgment of the court of appeals as its own, but that the record and proceedings in the appellate tribunal are remitted to be proceeded upon in this court according to law. But I do not think that the court of appeals has, by its judgment, disposed of the entire action and all the questions involved therein, and absolutely determined that neither of the parties is entitled to any costs as against the other. The judgment entered upon the report of the referee dismissing plaintiff’s complaint with four hundred and seventeen dollars and ninety-seven cents costs to the defendants, having been reversed, upon appeal, by the order of the general term, which directed a new trial, with costs to the plaintiff to abide the event, and the court of appeals having, on defendants’ appeal from said order, affirmed the same in all things and further ordered and adjudged that judgment absolute be renderedffor the plaintiff restraining the defendant from inserting beams, &c., in the walls of plaintiff’s building, without prejudice to the claim of either party to the land and premises in dispute, and without costs to either party, I am clearly of the opinion that the words ‘ ‘ and without costs to either party” refer only .to the costs of the appeal to the court of appeals, and that plaintiff is entitled to the costs secured to him by the general term order upon the event of his final success.

The next question, .therefore, is whether, upon plaintiff’s ultimate success, which has now been attained, such order covers the costs of the action and of the appeal to the general term, or of such appeal only.

In Koon v. Thurman (2 Hill, 357), Judge Cowen says, such a rule means the costs of the motion for a new trial as well as the costs of the trial itself. That may mean, however, the costs of the second trial, and not of the first trial. But in Goshing v. Acker (2 Hill, 391), it was held that a party ultimately successful will have costs of the trial below, on the principle that the appellate court gives such judgment as the court below should have given, and that such judgment carries costs.

On the same principle it has been held that when the favor of a new trial is granted on payment of costs, the costs meant to include the costs of all such proceedings as are vacated, in order that a new trial may be had (Ellsworth n. Gooding, 8 How. Pr. 1; North v. Sargeant, 14 Abb. Pr. 224). According to the principle of these decisions the order referred to covers all the costs which have been taxed.

This court, in carrying into effect the judgment of the Court of appeals, had the right to dispose of this question of costs, and the disposition, as made, should not be disturbed.

The judgment and order appealed from should be severally affirmed, with costs.

Monell, J., concurred.

Barbour, Ch. J.

(Concurring in abone opinion in some respects, but dissenting as to others, and from the conclusion arrived at).—The appellant’s counsel is in error in supposing this court' is absolutely bound upon the filing of a remittitur, to render a judgment" simply adopting the judgment of the court of appeals as its own, and that it has no power except that. The record and proceedings in the appellate tribunal are remitted to the superior court, “ there to be proceeded upon according to law.” They are remitted in order that the judgment of the court of dernier resort may be carried into effect; and if, to accomplish that object, it becomes necessary that further proceedings be had in the court below prior to the entry there of a judgment on the remittitur, that will be done. So, in the case of Rogers v. Patterson (4 Paige, 418), after the "emittitur was sent down from the court of errors, and even after a judgment thereon was entered in chancery "n the usual form, the suit was revived on petition, and he executors of a complainant who had died during he appeal were brought in as parties. In pronouncing the decision the chancellor said:—“ There must be a decree of this court to carry into effect the decree of the court for correction of errors . . . “the terms of the decretal order to correspond, as near as may be, with the decree of the court of errors, adapting such decree to the suit as it is now to stand revived,” &c. So, too, in Quackenbush v. Leonard (10 Id. 131), where a female complainant had married after the decree in chancery had passed, and, pending an appeal therefrom, the chancellor held that the decree of the appellate court, although made after the marriage, was not void, and that it must be carried into effect in the court of chancery, after the proper parties were brought in; and he directed that the husband of the woman, and she, herself, by her new name, be made parties complainants by bill of revivor.

As the absolute judgment at special term dismissing the complaint, with costs to the defendant, has never been reversed, affirmed, or modified, by a judgment of this court at general term, and as the court of appeals determined nothing, in terms, in regard to that judgment, it is possible that the judge at special term would have directed the insertion of such a provision in the judgment, upon remittitur, as would have relieved the plaintiff from such former adjudication, in order to carry into effect the intention of the appellate court, if his attention had been called to that question. For, although it is apparent from the fragment of Judge Fapallo’s opinion which is printed with the appellant’s brief, and what appears in the judgment itself, that the court intended to reserve to the plaintiff the right to bring and maintain his action of ejectment, precisely as he might have done if there had been no judgment against him upon that question in this action, yet the judgment of the court of appeals did not contain all the provisions necessary to effectuate that intention.

Be that, however, as it may, there can be no doubt that the court of appeals designed, by its judgment, to dispose of the entire action and all the questions involved therein. It, therefore, had a right to adjudicate in respect to costs; and as neither party had fully succeeded, a direction was given in that regard which accorded with the well-known rule. The court of appeals, therefore, having adjudicated, upon the determination of the entire action, that neither of the parties was entitled to recover costs, it follows that the learned judge at special term erred in awarding costs to the plaintiff, and in permitting the same to be inserted in the judgment.

The order appealed from should, therefore, be reversed, and an order entered directing the provision in the judgment which awards costs to the plaintiff, to be stricken therefrom, and the words “ without costs” to be inserted in place thereof. The appellants are, of course, entitled to their costs of this appeal.  