
    Cassidy v. McFarland.
    (New York Common Pleas
    General Term,
    January, 1893.)
    The proper sum to be taxed by the prevailing party on a decision of the General Term of this court affirming an order “with costs," is ten dollars and disbursement.
    Appeal by the defendant, Frederick Wood, from an order of the Special Term of this court denying the motion for a new taxation of costs. He had appealed to the General Term from an order of reference, and the order was affirmed “ with costs.” The respondent proceeded to tax before the clerk of the court a bill of costs (ten dollars) and disbursements (nine dollars and six cents) amounting together to nineteen dollars and six cents. Taxation of the bill of costs was objected to on the ground that the order of the General Term did not authorize or empower the clerk of this court to tax any disbursement or costs, nor fix the amount of costs at ten dollars, or any other sum, and that no disbursements can be taxed on a motion, except disbursements for printing.
   Daly, Ch. J.

The order of the General Term affirmed

the order of reference with costs.” It has been held that ten dollars costs, together with disbursements can be taxed under such an order. Jones v. Sherman, 8 N. Y. St. Repr. 344.

The Code provides that costs of motion shall be a sum fixed by the court or judge not exceeding ten dollars. § 3251. But there is no provision requiring that the costs allowed upon an appeal from an order made upon a motion shall be fixed at a certain sum by the appellate court. It is settled that motion ■costs ordered only can be allowed upon such an appeal (Phipps v. Carman, 26 Hun, 518), and, as the usual costs of motion are ten' dollars, it is to be assumed that that sum is intended by an order affirming “ with costs ” but specifying no amount.

By section 3256 it is provided that where an allowance of costs is made in an action the party is entitled to his necessary ■disbursements. It has been held that disbursements of a motion may be taxed by the clerk only where the order expressly directs it to be done. Ward v. Ward, N. Y. Law Jour. November 19, 1892. That decision prescribed the practice upon a motion, but not upon an appeal from an order. It is nowhere required that the General Term shall tax the disbursements of the successful party, and, where disbursements follow the allowance of costs by the- General Term and must be taxed, the authority of the clerk to tax them is from the necessity of the case presumed from the order allowing costs.

The last objection made is, that only disbursements for pi’inting can be allowed upon a motion. § 3251. There is no .such restriction upon an appeal from an order.

" Order appealed from affirmed, with costs.

Bookstaveb and Pryor, JJ., concur.

-Order affirmed.  