
    SUPREME COURT.
    Fellows and others agt. Sheridan and others.
    COSTS.
    Where the case is directed to be first heard at a general term, the successful party can not have costs as on an appeal.
    
      It seems, that on a motion for new trial in such cases, the court may grant the costs of a motion, not exceeding ten dollars.
    
      Saratoga Special Term, June 1852.
    This was a motion to correct the adjustment of costs by the clerk.
    The cause was tried at the Saratoga circuit without a jury; and the justice holding the circuit, decided in favor of the defendant, but stayed the entry of judgment; and the plaintiff made a case, which was settled; whereupon the judge directed the cause to be heard, in the first instance, at a that hearing the plaintiff also moved for . ground of newly discovered evidence; but denied
    motion, and also the motion for a new trial entry by the clerk at general term was, inadrl trial be denied and the judgment of the spec®
    Nothing was said about costs. On the adjus? clerk refused to allow costs as in cases of appeaí^BrrPÜS^ed ten dollars costs of opposing the motion. The object of this motion is to have costs allowed, as on an appeal, and in addition to the costs of trial.
    J. Lawrence, for the Motion.
    
    E. F. Bullard, Contra.
    
   Hand, Justice.

This was not an appeal, and the costs of an appeal can not be allowed. The cause was sent to the general term, and no judgment given by a single judge. The Code has made no provision for costs to either side, in these cases, whether the proceedings be before one judge or at a general term. It is not an appeal nor a separate or distinct trial of an issue of law or fact; but rather a continuation of, or an incident to the trial (Code, §§252, 264, 265). And, the fee given for a trial is, ordinarily, the compensation as against the other party, for the services of the attorney and counsel from the commencement of the trial to judgment {id. § 307), except that where a motion for a new trial is made upon a case, &c. I do not see why the court may not allow, not exceeding ten dollars as costs on a motion. That point, however, does not properly arise here; for in this case, there was a motion for a new trial on the ground of newly discovered evidence. The necessary disbursements incident to this proceeding, I think, should also be allowed {id. §311). Motion denied.  