The New York Life Insurance Compary, Appellant, against Glycera Waldron, Respondent

The New York Life Insurance Compary, Appellant, against Glycera Waldron, Respondent. (Decided January 3d, 1881.) Under the provision of section 2250 of the Code of Civil Procedure, —that costs in summary proceedings to recover the possession of real property, when allowed, “must be at the rate allowed bylaw in an action in a justice’s court, or, in the city of New York, in a district court,”—no costs can be awarded to the landlord where the final order in such proceedings in the city of New York awards him the possession of the property; as costs are allowed by law in district courts only according to the amount of the money judgment recovered. Appeal from a final order by a justice of a district court in the city of New York, in summary proceedings to recover the possession of real property. The order awarded to the petitioner the delivery of the possession of the property, and $2.25 allowed him as marshal’s fees, but no costs. The amendment of § 2250 of the Code, by which the words “ or, in the city of New York, in a district court,” are omitted from the provision above cited (L. 1882, c. 399), was enacted subsequently to this decision. [MAJORITY — J. F. Daly, J.] J. F. Daly, J. The 2249th section of the Code provides that the justice in his final order must award to the petitioner the costs of the special proceeding. The 2250th section provides that “costs, when allowed .... must be at the rate allowed by law in .... a district court, and are limited in like manner.” Costs are allowed by law in the district courts according to the amount of the money judgment recovered (Act of 1857, c. 344, § 70). In summary proceedings the landlord recovers no judgment; he obtains- a final order awarding the possession of the property and the removal of the occupant. It cannot be claimed that the value of the property is to determine the amount of costs. Appellant urges that the amount of rent found to be due is to be regarded as a recovery for the purpose of awarding costs; but the landlord recovers no rent; he must bring his action for it, notwithstanding his recovery of the possession of the land. The framers of the Code have not made the provision they obviously intended, and we should be usurping the province of the legislature if we attempted to remedy the defect. The judgment should be affirmed, with costs of appeal. Charles P. Daly, Ch. J., and Van Hoesen, J., concurred. Order affirmed, with costs of appeal.