
    MATTER OF CLARKE.
    
      N. Y. Supreme Court, Seventh District, Special Term ;
    
      June, 1891.
    
      Costs in special proceeding.] Proceedings for leave to mortgage-trust lands are special proceedings within the statute as to costs, and where, upon objections the matter has been referred to a referee to take proof of the facts, and there has been a hearing before him and upon his report a final order has been made, there has been a trial, and costs before and after notice of trial and a trial fee, are allowable.
    
      The samei\ Such order is a final order, and upon an appeal from it. the costs are the same as upon an appeal from a judgment p but printing the evidence taken before the referee is not making a case within the statute, and an allowance of $ 201 therefor is unauthorized.
    
      Motion for retaxation of costs. The proceeding was an application to mortgage real property held in • trust, under the authority of Revised Statutes, part 2, chap. 1, tit. 2, art. 2, § 65, as amended by L. 1886, c. 257. The court sent the matter to a referee to take the evidence and report with his opinion. The referee/ reported in favor of a dismissal of the proceeding on the ground that the real estate in question was not a part of the trust. The court at special term overruled the referee and directed a mortgage according to the prayer of the petition. Upon an appeal by the heirs of the testator, the general term reversed the order and denied the application with costs (See opinion 37 State Rep. 428).
    Upon taxation, the clerk allowed only $10 motion costs and disbursements, and $10 on appeal from the order.
    The contesting heirs moved for a retaxation.
    
      W. T. Dunmore (Dunmore & Sholes, attorneys), for the motion.
    
      Fanning & Williams for petitioner, opposed
    Cited (Ranney v. Peyser, 3 Month Law Bul. 11; Walsh v. Van Allen, 36 Hun, 629; Hebrank v. Colell, 2 Month Law Bul. 39; Jones v. Sherman, 18 Abb. N. C. 461; People v. Cooper, 20 Hun, 487 ; McDennott v. Hennesy, 9 Hun, 59; Matter of N. Y. Prot. Epis. School, 24 Hun, 518 ; Matter of N. Y. L. & W. R. R. Co., 26 Hun, 592 ; Victory Webb Printing Co. v. Beecher, 4 Month Law Bul. 41; Matter of Board of Education of Brooklyn, 34 State Rep. 498).
    
      
       See also McLean v. Jephson, 26 Abb. N. C. 40, with note at p. 44..
    
   Rumsey, J.

That this is a special proceeding is conceded. It is also conceded that the order appealed from is a final order. The law is clear, that when allowed, costs in special proceedings are to be taxed at the same rate allowed for similar services in an action or on appeal from ajudgment (Code Civ. Pro. § 3240).

The proceeding was begun by the service of a petition and notice of motion, and upon the objection of the contestants, the matter was referred to a referee, to take proof of the facts. A hearing was had before him, and, upon his report, a final order was made. That hearing was, I think, a trial within the statute fixing the amount of costs. A trial is the judicial examination of the matters in controversy between the parties before the proper tribunal. The questions may be raised by pleadings, as in an action, or by any other assertion and denial which in the way required by law shall advise the court that the taking of testimony, or an examination of the facts, is necessary to give judgment in the case between the parties.

It differs from the hearing upon a motion in that the motion relates to some incidental question collateral to the main object of the proceeding, and is connected with and dependent upon the principal - remedy (Rensselaer Saratoga R. R. Co. v. Davis, 55 N. Y. 145); while the object of a trial is to ascertain whether the party is entitled to the principal remedy which is the object of his proceedings. The hearing before the referee in this case was to enable the court to ascertain whether or not the petitioner was entitled to the relief demanded, and as the result of the hearing a final order was made, after evidence had been given on both sides. This was clearly, I think, a trial of the proceeding. The case differs from that of Matter of N. Y. L. & W. Ry. Co. (26 Hun, 593), because in that case the petition .asking for the appointment of commissioners was not opposed, and therefore the relief demanded in the •special proceeding was granted without a trial. There having been a trial, the costs up to the making of the final order must be taxed as for the same services in an action; to wit • Before notice $10; after notice, $15 ; Trial fee, $30; trial occupied more than two days, $10.

The order made by the special term, and which was .appealed from was a “ final order” as the Code calls it (§§ 1358, 1356) as distinguished from an intermediate order. Upon an appeal from such an order the authorities are clear that the costs are the same as upon an appeal from a judgment (Matter of Jetter, 78 N. Y. 601; People v. City Bank, 96 Id. 32, 37; Code Civ. Pro. § 3240). But there was no case made. The evidence taken before the referee and used at the special term was printed, as it must have been, with the report and the other papers used at that hearing. That was not the making of a case and the charge of $20 for making and serving a case cannot be allowed unless a ■case is actually made, which was not done.

This item was properly disallowed by the clerk. The items of disbursements objected to were also properly disallowed.

The costs must be retaxed and the following items allowed in addition to those already taxed by the clerk.

Costs before notice of trial, $10

Costs after notice and before trial, 15

Trial fee, . . 30

Trial occ. more than two days, 10

Appeal to gen. term before argt., 20

Appeal to gen. term for argt., 40

As neither party has wholly succeeded on this motion, neither party shall have costs of the motion.  