
    The People ex rel. The Oak Hill Cemetery Association, Resp't, v. Luther A. Pratt et al., Ass'rs, App'lts.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed January 18, 1893.)
    
    Certiorari—Costs.
    In eertiorarri against assessors to review their official action, the award and taxation of costs is governed by the provisions of chap. 269, Laws of 1880, and costs of appeal, if allowed at all, are to be allowed as on appeals from orders, under § 3239 of the Code, and not as in actions under § 3240.
    Appeal by defendants from an order of Monroe special term, directing a re-taxation of costs.
    
      G. D. Kiehel, for app’lts;
    
      Asa W. Russell {J. D. Coffey, of counsel), for resp’ts.
   Dwight, P. J.

The proceeding was by certiorari to review an assessment. It went, by appeal of both parties, from the special term to the general term and thence to the court of appeals. The latter court sustained the appeal of the relator and made a final order in its favor, with costs in the general term and court of appeals. These costs the clerk taxed as on appeals from orders. The special term directed a re-taxation and allowance of costs as in an action, and from that order this appeal is taken.

We think the clerk was right and that the order for a re-taxation was erroneous. Certiorari is, no doubt, a special proceeding, and the award and taxation of costs therein, generally, are governed by § 3240 of the Code of Civil Procedure. But the case of certiorari against assessors, to review their official action, is an exceptional one; and is governed, in respect to the award and taxation of costs, by the provisions of chap. 269 of the Laws of 1880, which is the statute under which the proceeding is taken.

By § 6 of that statute it is provided that costs shall not be allowed against assessors, or other officers, whose proceedings may be reviewed under this act, “unless it shall appear to the court that they acted with gross negligence, in bad faith or with malice.” In the case of the People ex rel. Smith, Jr., v. Asten, 1 St. Rep., 37, the court of appeals held, that this provision, § 6, relieved the assessors from costs only upon the hearing at special term on the return of the certiorari; that an appeal from the determination there made was subsequently provided for by § 7, and directed to be heard and determined in like manner as an appeal from an order; and that the costs of such appeal might be awarded, in the discretion of the court, under § 3239 of the Code of Civil Procedure, which is the section providing for costs on appeal from orders.

Section 7, above referred to, of the act of 1880 provides for an appeal from the determination made under this act, which shall be taken “ as from an order and shall be heard and determined in like manner.” The decision in the ease of Asten above, though announced in a very brief memorandum, is a distinct recognition by the court of appeals of the exceptional character of the special proceeding by certiorari against assessors, which is given by the act cited, and of the rule that the costs of appeals in that proceeding are to be allowed, if at all, as on appeals from orders, under § 3239, and not as in actions under § 3240 of the Code.

In the case of the People ex rel. W. V. R. R. Co. v. Keator, 101 N. Y., 612, the same court, referring to the provision of § 7 above, to the effect that all appeals in this proceeding shall be heard and determined as appeals from orders, says “ we do not think that this is merely permissive, and that an appellant has the option to appeal either under the Code or the section named. The provision is a part óf the whole scheme, and was intended to provide the precise way in which an order, judgment or determination under that act could be reviewed." The language “ order, judgment or determination ” here used is quoted from the statute, but the court of appeals insists that such final determination is an order and not a judgment. In The People ex rel. W. U.Tel. v. Dolan, 126 N. Y., 166, 179; 37 St. Rep., 28, referring to the final determination appealed from, the court says: “ The counsel calls it a judgment of the general term ; it is in truth an order, and has been so held to be by usciting the case of Keaior, above.

We think we follow the plain indication of these cases, when we hold that the proceeding by certiorari against assessors, given by chapter 269 of the Law's of 1880, is peculiar and exceptional among special proceedings; that it is governed in all respects by the act by which it is provided; that appeals therein are to be had and treated in all respects as appeals from orders, and that costs on such appeals, when allowed in the discretion of the court, are to be taxed as motion costs and not as the costs of an appeal from a judgment.

The prder of the special term should. be reversed and the taxation by the clerk confirmed, with costs.

Macomber and Lewis, JJ., concur.  