
    Andrew J. Fargo and ano., App’lts, v. Louisa A. Helmes, Impl’d, Resp’t.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed January, 1887.)
    
    1. Costs—When right to, is perfected.
    The right to costs is created by statute, and wholly depends upon it, and the right does not become fixed until the termination of the action or special proceeding.
    
      2. Same—General lien law—Laws 1885, chap. 842, §§ 14, 25—Right to COSTS IN PROCEEDINGS UNDER LAWS REPEALED THEREBY AND PENDING AT THE PASSAGE OP THE ACT.
    The legislature on May 27, 1885, passed, a general lien law (Laws 1885, chap. 342, $ 25), applicable in the several cities and counties of this state, and repealing certain other acts and parts of acts. This act contains a clause providing that it shall not be construed so as to affect, enlarge, invalidate or defeat any lieu or right to a lien now existing, or any proceeding to enforce such lien, now pending by virtue of any of the provisions of the acts thereby repealed. By section 14 costs are left in the discretion of the court. A proceeding to enforce a mechanic's lien was commenced before the passage of this act and was pending at the time of its passage. Held, that a decision having been made in the matter which was silent upon the subject of costs, costs could not be taxed by the party in whose favor the decision was rendered.
    Appeal from an order of the Onondaga special term setting aside a taxation of costs in favor of plaintiffs.
    Plaintiffs were contractors and builders who had hens as mechanics upon the respondent’s premises, and commenced this proceeding April 14, 1885. Answer was served May 9, 1885. Issues of fact were tried at the Onondaga, February, 1886, special term, and findings of fact and a decision handed down June 12, 1886, which is silent upon the question of costs.
    Plaintiffs taxed costs as in an ordinary action, and entered judgment therefor, which taxation was set aside by special term, which held that as costs were not awarded to the plaintiffs by the trial court they could not tax and have costs.
    
      Edwin S. Butterfield, for app’lts; Knapp, Nottingham and Andrews, for resp’t.
   Hardin, P. J.

May 27, 1885, by chapter 342 of the Laws of 1885, the legislature passed a general lien law applicable ‘‘ in the several cities and counties,” and repealed certain acts and parts of acts.

The “ Onondaga Act ” and “ the City Act ” referred to in our opinion in Ryan v. Klock (36 Hun, 104), were repealed by section 25 of the act of 1885, and the repealing section contains a saving clause which must be examined and construed in determining the question brought to us by the present appeal.

That clause reads, viz: “But this act shall not beso construed as to affect, enlarge, invalidate or defeat any lien or right to a lien now existing, or any proceeding to enforce such lien, now pending by virtue of any of the provisions of the acts hereby repealed, nor to revive any other or former acts or parts of acts repealed by the acts hereby repealed.”

Ho question arises here as to “any lien or right to a lien.” The lien and right to a lien have been established fully by the decision of the special term, given in June, 1886. By-section 14 of the act of 1885 it is provided, “costs and disbursements * *. * shall rest in the discretion of the court.”

Appellants contend that the saving clause found in the repealing act should be so construed as to allow costs to be recovered by the plaintiffs without any award thereof, as a matter of discretion by the trial court. While on the other hand the respondent contends that the rule laid down in the act of 1885, is the only one in force at the time of the decision, and that because the court did not award costs to the plaintiffs, they are not entitled to recover them.

Supervisors v. Briggs (3 Denio, 173), is an authority for holding “the right to costs is created by statute, and wholly depends upon it, and the right does not become fixed until the termination of the suit. That rule was again asserted in Garling v. Ladd (27 Hun, 112), and in Balcome v. Terwilliger, fourth department manuscript opinion, November, 1886.

We are asked to hold that the saving clause in the repealing act leaves in force the former statutes as far as they relate to costs.

The words declaring that the repealing act shall “not be so construed as to affect, enlarge, invalidate or defeat ” any proceeding to enforce such lien now pending by virtue of any of the provisions of the acts * * * are relied upon. But we think they do not aid the appellants.

The “proceeding” to enforce any such lien “now pending” referred to in the statue, is quite obviously the prescribed mode of action for carrying into effect a legal right. In Rich v. Husson (1 Duer, 617), we find an interpretation of the word “proceeding,” which we deem apt and appropriate, and pertinent to the question before us. We quote from the opinion of Duer, J., viz.: “The word ‘proceeding/ both in its popular use and in its technical application, has a definite meaning which we cannot enlarge. It means in all cases the performance of an act, and is wholly distinct from any consideration of an abstract right. A proceeding in a civil action is an act necessary to be done in order to attain a given end. * * * The rules by which proceedings are governed are rules of procedure, those by which rights are established and defined rules of law. It is the law which gives the right to costs and fixes the amount. It is procedure which declares where and by whom the costs, to which a party has a previous title, shall be adjusted or taxed, and when and by whose direction a judgment in his favor shall be entered.”

If the trial court had exercised its discretion and awarded costs to the plaintiffs, it would not thereby have affected, enlarged, invalidated or defeated any “proceeding” pending by virtue of any of the provisions of the acts repealed. People v. Herkimer, C. P., 4 Wendell, 210.

The object of the saving clause was to preserve “any lien or a right to a lien ” and any pending proceedings.

The lien has been saved; the “proceedings to enforce such lien” have been preserved.-

It was competent for the legislature to repeal all provisions heretofore existing as to costs, to place the costs to be given in all proceedings then pending or thereafter brought within the discretion of the trial court. Jackett v. Judd, 18 Howard, 385.

Appellant reiers to Dean v. Gridley (11 Wendell, 169), to support his contention.

We think the language of the statute saving pending actions quite unlike that found in the act of 1885. That statute declared “no prosecution * * * pending at the time any statutory provision shall be repealed, shall be affected by such repeal, but the same shall proceed in all respects as if such provision had not been repealed * * * ”

We are of the opinion that the special term reached the proper conclusion and gave the saving clause in the statute the proper construction.

The question is novel and the order may, therefore, be affirmed properly without costs to either party.

Order of the special term affirmed without costs to either party.

Boarmian, J,, and Follett, J., concur!  