GRAY against HANNAH

GRAY against HANNAH. Supreme Court, Eighth District; General Term, March, 1867. Appeal ebom County Coubt.—Costs. Upon an appeal from a judgment of a County Court, to the Supreme Court, the successful party is entitled to the full costs given by subdivision 5 of section 307 of the Code of Procedure. The right to those costs being given by statute, any provision in the order of the Supreme Court determining the appeal, which purports to limit the costs to a less sum—e. g., a provision awarding motion costs only— is a nullity. Entering an order containing such a provision is not a waiver of the statutory costs. Appeal from an.order of the special term denying a motion for re-taxation of costs. This action was brought by David Gray against Alexander Hannah. It originated in a justice’s court, where the plaintiff recover'd a judgment for eighty-six dollars damages, besides costs. The defendant appealed to the Monroe county court, where a new trial was had, and the plaintiff received a verdict for eighty dollars only; and as the recovery was less favor-' able for him than in the justice’s court, the county court ordered that he pay costs to the defendant, and that they be set off against the plaintiff’s recovery. On appeal to the general term of the supreme court, that order was reversed, with ten dollars costs. (See 1 Abb. Pr., N.8., 48.) The plaintiff then docketed a judgment in the county court for the amount of his recovery, besides interest and $49 81 costs, and collected the same. The ten dollars costs allowed by the court on appeal were pot included in the judgment, nor collected ; and subsequently the plaintiff procured the clerk to tax the costs of such appeal at $61 48. The defendant then moved at special term for a re-adjustment of such costs, on the ground that the plaintiff was entitled to only the ten dollars costs allowed by the order; but the motion was denied, and the defendant appealed. J. H. McDonald, for appellant. H. H. Woodward, for respondent. [MAJORITY — By the Court.—James C. Smith, P. J.] By the Court.—James C. Smith, P. J. The question is whether the plaintiff is entitled to the amount of costs on appeal given by the fifth subdivision- of section 307 of the Code. A bare reference to the language of the section is sufficient to determine the question in the plaintiff’s favor. The section provides that “ when allowed, costs shall be as follows : * * 5. To either party oh appeal except to the court of appeals, and except appeals in the cases mentioned in section 349, before argument, fifteen dollars; for argument, thirty dollars,” &c. The only appeals authorized by section 349, are those taken from orders in actions in the supreme court (11 How., 203; 20 Id., 421). The appeal in this case not being one of that class, nor an appeal to the court of appeals, is not within either of the exceptions, and is therefore one of the cases in which costs are given by section 307. It is an appeal under section 344, as amended in 1860. That section is a part of chapter 3 of title 11, which is entitled “ appeals to the supreme court from an inferior court,” while section 349 is in chapter 4, which is entitled “ appeals in the supreme court * * from a single judge to the general term.” Prior to the amendment of section 344, it was held that there was no right of appeal to the supreme court from an interlocutory order made in the progress of a cause in a county court (Smith v. Hart, 11 How., 203). ■ The amendment seems to have been adopted to supply the want pointed out by that decision. It is apparent that the above cited provisions of section 307 in respect to costs on appeal was intended to apply to appeals from orders as well as to those from judgments,' since one class of appeals from orders, to wit, those authorized by section 349, are expressly excepted from its operation. The only considerations suggested in opposition to the views above expressed, are "that it is unreasonable to allow full costs in appeals from orders under section 344, while limiting them to mere motion costs in appeals under section 349, and that the legislature in adopting the amendment to section 344, may have overlooked the effect produced by it in connection with section 307 upon the costs of appeals to be brought under its provisions. These considerations would be entitled to much weight, if the legislature had employed words of doubtful meaning, but they have not done so. Their language is clear and unambiguous, and we cannot assume that they overlooked its obvious and necessary effect, or that they intended to express a different meaning. However unreasonable or impolitic the provision may be, the courts have no power to amend it. The plaintiff’s right to full costs being given by statute, the court cannot take it away, and the provision in the order limiting his costs to ten dollars is a nullity. It being void, the entering of the order in that form, was not a waiver of the plaintiff’s right to costs, and he was regular in afterwards procuring them to be adjusted. The order should be affirmed, but without costs, as the question is novel, and one of practice merely. All concurring, ordered accordingly. Present—J. C. Smith, P. J., and E. D. Smith and Johnson, J. J.