
    Price v. Price et al.
    
    
      (Supreme Court, General Term, First Department.
    
    November 13, 1891.)
    1. Costs—On Appeal.
    In an action to recover dower, a judgment entered for defendants, dismissing the complaint upon report of a referee to whom the issues were referred, was reversed on appeal to the general term, and judgment absolute ordered for plaintiff, and a reference ordered for admeasurement of the dower, etc. The report of the referee was finally confirmed, and judgment rendered against all defendants for dower, damages, and costs. This judgment was affirmed by the general term, and both parties appealed to the court of appeals, where the judgment and orders subsequent to the judgment upon the trial of the issues were reversed, and the judgment entered upon the report of the referee dismissing the complaint, with costs, was affirmed, with costs. Held, under Code Civil Proc. N. Y. § 3338, providing that “the respondent is entitled to costs upon the affirmance, and the appellant upon the reversal, of the judgment appealed from, ” that defendants were entitled to costs as respondents on the first appeal to the general term, to costs as appellants on the second appeal to the general term, and to costs as appellants on the appeal to the court of appeals, but not to costs on plaintiff’s appeal from the judgment of the general term, because that judgment, on plaintiff’s appeal, was neither affirmed nor reversed.
    2. Same—Motions—Discretion op Court.
    Motion costs are in the discretion of the court that decides the motion, and a party is not entitled to have the same taxed except on order allowed by such court. A general award of costs by the court of appeals will not carry the right to such discretionary costs in the supreme court.
    8. Same—Interlocutory Orders.
    In an action for dower, proceedings before a referee to ascertain the interests of the parties, and for the admeasurement of dower, subsequent to judgment absolute for plaintiff, ordered by the general term on appeal, are interlocutory, and not trials, within Code Civil Proc. N. Y. § 3351, providing for costs of trials.
    Appeal from special term, New York county.
    Action by Constance B. Price against Walter J. Price and others to recover dower. Appeal by defendants from a taxation of their costs by the clerk. The special term affirmed the taxation, and defendants appealed to this court.
    Reversed.
    Argued before Van Brunt, P. J., and Daniels and Ingraham, JJ.
    
      Bristow, Peet & Opdyke, for appellants Paine, Price, and Dunne. James R. Marvin, for appellant Little. De Forest & Weeks, Hughes & Northrup, and Stephen Brown, (William Peet, James R. Marvin, Frank S. Hall, and Jared G. Baldwin, Jr., of counsel,) for appellants. Starr & Hooker, (George H. Starr, of counsel,) for respondent.
   Ingraham, J.

This action was brought to recover dower. The.issues were referred to a referee to hear and determine, who reported in favor of the defendants, dismissing the complaint. Upon an appeal from the judgment entered on such report the judgment was reversed, and judgment absolute ordered for the plaintiff, whereby it was referred to a referee to admeasure the plaintiff’s dower. The report of the referee was finally confirmed, and judgment ordered against all the defendants, awarding plaintiff dower, damages, and costs. This judgment was affirmed by the court, (7 N. Y. Supp. 474,) whereupon both parties appealed to the court of appeals, (27 N. E. Rep. 383,) where the judgment and orders subsequent to the judgment entered on the report of the referee who tried the issues in the action were reversed, and the judgment entered upon the report of the referee dismissing the complaint, with costs, was affirmed, with costs to each of the defendants appearing by separate attorneys, and we have to determine the costs to which defendants are entitled. This is an action specified in section 3228 of the Code, and upon an appeal from a final judgment, if the judgment is affirmed, the respondent is entitled to costs as a matter of right. The defendants were the respondents on the appeal to the general term from the judgment dismissing the complaint, and, as that judgment has been affirmed, they are entitled to costs of the appeal from that judgment to the general term as well as to the court of appeals. We think also that the defendants should have been allowed the costs to which an appellant is entitled on the appeal from the judgment entered on the decision of the general term. On that appeal the defendants were the appellants, and, as the judgment was reversed under section 3238, the appellants were entitled to costs. We think, therefore, that defendants were entitled to the costs of respondent on the first appeal to the general term, and to the costs as'appellants on the appeal to the court of appeals. This ruling is in accordance with the decision of the court of appeals in the case of Murtha v. Curley, 92 N. Y. 360. Neither party is entitled to costs on the appeal of the plaintiff from the judgment entered on the decision of the general term, because that judgment has never been either affirmed or reversed. On that appeal the defendants, who now ask to tax their costs as respondents, could only be entitled to costs in case the judgment on the appeal of the plaintiff was affirmed. Section 3238. As the judgment on that appeal was not affirmed, the judgment having been entirely reversed on the appeal of the defendants, there was no decision of that appeal, and neither party is entitled to costs thereon.

The defendants also ask the court to tax $10 costs for each of the motions where costs were allowed to the plaintiff by the orders which were reversed. Motion costs are in the discretion of the court that decides the motion. It does not follow that the court, in the exercise of that discretion, would have granted costs of motion to defendants if the motion had been denied, because it granted costs to plaintiff when the motion was granted. A party is not . entitled to be allowed motion costs unless he can present an order in which such costs are allowed by the court making the order. In this case no such order is produced. So far as the allowance of costs are discretionary in the supreme court, a general award of “costs” by the court of appeals applied only to costs on the appeal to that court. In re Protestant E. Public School, 86 N. Y. 397. The clerk, therefore, was correct in refusing to allow defendants the costs of the motions.

The defendants also asked to be allowed costs as upon a trial for each of the two proceedings before the referee under the interlocutory judgment entered upon the decision of the general term. It is clear, however, that there -was but one trial-of the action. That was the trial before the referee to hear and determine, and in the judgment dismissing the complaint, entered upon the report of that referee, the costs for that trial were allowed. The proceedings in the subsequent proceedings were not trials of the action. The case had been tried, and a judgment entered by the general term in favor of the plaintiff. The referee was ordered to ascertain tlie specific interest of the parties to the action in the property described in the complaint, and to set apart to the plaintiff the portion of said property to which she was entitled, and to state an account between certain of the parties, so as to ascertain the amount that plaintiff was entitled to recover. Such a reference is interlocutory in its character, and is not a trial, within section 3251 of the Code. We think, therefore, that defendants were entitled to costs as respondents on the first appeal to the general term, to costs as appellants on the second appeal to the general term, and to costs as appellants on the appeal to the court of appeals. The order should be reversed, and a retaxation ordered in accordance with the views here expressed, with $10 costs and disbursements of this appeal to the appellants. All concur.  