VAN ALEN against THE AMERICAN NATIONAL BANK

VAN ALEN against THE AMERICAN NATIONAL BANK. Supreme Court, First Department, First District; General Term, June, 1871. Appeal. —Costs. On an appeal from a judgment and an appeal from an order denying a motion for a new trial, the supreme court does not allow costs of two appeals to be taxed, when both appeals are heard together and on the same set of papers. Appeal from an order. A verdict for the plaintiff, Timothy O. Yan Alen, having been rendered in this action, the defendant moved for a new trial on the judge’s minutes, which motion was denied. Judgment was afterward entered on the verdict, and defendant appealed from the judgment, and from the order denying the new trial, by one notice of appeal. The judgment and order were each affirmed at the general term, with costs. The clerk, on taxation of respondents’ costs, allowed, subject to appellant’s objection, as costs on affirmance of the order, before argument twenty dollars, and for argument forty dollars, in addition to the same costs allowed on affirmance of the judgment. The defendant having appealed from the taxation of the clerk, it was ordered, that such taxation of costs be disallowed, and the clerk was directed to allow in lieu thereof ten dollars, as respondent’s costs on the affirmance of the order at general term. From this order the plaintiff appealed to the general term. Brown, Hall & Vanderpoel, for plaintiff, appellant. I. Plaintiff is entitled to the items in question as matter of right, under Code, section 307, subdivision 5, alone, which provides, “When allowed, costs shall be as follows.” Subdivision 5 of the same section fixes the amount of costs as follows: “ To either party on appeal, except to the court of appeals, and except appeals in the cases mentioned in subdivisions 1, 3, 4 and 5 of section 349, and except in cases mentioned in the second paragraph of section 344, before argument, twenty dollars ; for argument, forty dollars.” . . . . The costs here claimed by plaintiff arose on an appeal, and that appeal was not one of those excepted. II. Plaintiff is also entitled to the disputed items under subdivision 2 of section 349, the appeals mentioned in which, not being excepted, are embraced within the provisions of subdivision 5 of section 307 (above quoted). The first clause of section 349 reads as follows : “An appeal may in like manner, and within the same time, be taken from an order made at a special term, by a single judge of the same court or county, .or a special county judge, or by a recorder, or by any recorder’s court of any city, in any stage of the action, including proceedings supplementary to the execution ; and may be thereupon reviewed in the following cases: (1.) “. . . . (2.) When it grants or refuses a new trial, or when it sustains or overrules a demurrer.” We have punctuated the above quotation as we find it in the editions of the annotated Code, from 1864 to 1870 ; which we submit gives the meaning intended by the legislature. A fanciful interpretation was suggested below, based, we suppose, on the funny punctuation of the Session Laws of 1862. For the convenience of the court we quote this part of the section from the Session Laws of 1851 and 1862: 1851. “An appeal may in like manner and within the same time, be taken from an order made at a special term or by a single judge of the same court, or a county or a special county judge, in any stage of the action, including proceedings supplementary to the execution, and may be thereupon reviewed in the following cases : ” 1862. “ An appeal may in like manner, and within the same time, be taken from an order made at a special term by a single judge of the same court, or county, or a special county judge, “ or by a recorder, or by any recorder’s court of any city,” in any stage of the action, including proceedings supplementary to the execution, and may be thereupon reviewed in the following cases : ” The meaning we submit is plain, though the punctuation is erroneous. If we adopt the strained construction suggested by defendant, it implies that the legislature supposed—(1.) That a special term might be held by more than “a single judge.” (2.) That the judge or judges holding the special term might be of another court. (3.) Or, indeed, be held by a county or special county judge! “An order made at a special term,” and an “order made by a single judge,” had each a well defined meaning, and had the legislature meant what defendant claims, it might as well have amplified the reference to the single judge by insisting that he should be a counselor at law, as that a special term should be held by a single judge. See the case of Ahern v. Standard Life Ins.Co., 9 Abb. Pr. N. S., 69, allowing like costs. Charles E. Woodbury, for defendant, appellant. The Code (subd. 5, § 307) does not authorize costs before and for argument on appeals from orders denying motions for new trials made upon the judge’s min utes. Such costs are allowed by that subdivision only on appeals from orders denying mptions for new trial upon a case made, which can only be at special term (§ 307, subd. &). The omission from the exceptions in subdivision 5, section 307, of subdivision 3 of section 349 of the Code, does not help the plaintiff, for the reason that the appeal allowed by subdivision 2 of section 349 is from an order made at a special term by a single judge of the same court, when it grants or refuses a new trial (§ 349). The omission of that subdivision from the exceptions in subdivision 5, section 307, was because such costs were expressly granted in the latter part of the same subdivision, and they did not desire to grant the same costs twice (See ■ subd. 5, § 307). There is no comma in section 349, between the words “special term ” and the words “ by a,” as appears in Yoorhies’ edition of the Code. See Laws of 1863, ch. 460, § 32, when the phraseology was changed to what it now is. See certificate of secretary of state presented herewith. Prior to 1863, section 307 excepted all appeals in cases provided by section 349, but authorized appeal costs “as” for a new trial on a case made; which word created diversities of opinion as to such costs. Section 349 at that time authorized appeals from orders denying new trials “made at a special term, or. by a single judge.” If the same phraseology existed now, the appeal costs would be taxable, because the order denying a new trial, made upon the judge’s minutes would be “by a single judge.” But in Laws of 1863, ch. 460, § 33, that section was changed to what it now is by striking out the comma and the word “or,” so that the appeals now authorized by that subdivision are those from orders made at a special term by a single judge. By the Constitution of 1846, Art., 6, § 6, special terms might have been held by one or more justices, and I suppose that no appeal could have been taken under section 349, if the special term had been composed of more than one judge. The change made in section 349 by striking out the comma and the word “ or,” and the change of the word “as” in subdivision 5, section 307 to the word “or,” compelled in the latter subdivision the omission from the exceptions from appeal costs, of subdivision 2 of section 349, because appeals allowed by subdivision 2 of section 349 were expressly provided for by the change of the “as” to the word “or” in subdivision 5, section 307. All the cases cited by appellant as .to such costs being allowed, are on appeals from orders made at special term on a case made. The appellant having taxed his costs as allowed by the order appealed from, and entered judgment therefor, has lost his right to appeal (Radway v. Graham, 4 Abb. Pr. N. S, 468). Otherwise in the New York superior court (see Matthews v. Wood, Ante, p. 328). [MAJORITY — By the Court.—Cardozo, J.] By the Court.—Cardozo, J. As there was but one argument on the two appeals in this case, the order allowing single costs only was right, and must be affirmed. Order affirmed. Present, G. G. Barnard and Cardozo, JJ. Ingraham, P. J., having made the order appealed from, took no part in the decision.