Thomas D. Taylor et al., Respondents, v. Russell C. Root et al., Appellants

Thomas D. Taylor et al., Respondents, v. Russell C. Root et al., Appellants. An order of General Term in an equity action, sending the case back to the referee before whom it was tried to decide upon the question of costs, cannot be reviewed in this court. Costs in an equity action are in the discretion of the court, and the exercise of this discretion cannot be reviewed. (Argued January 8, 1872; decided May term, 1872.) This was an action for an accounting. It was four times tried. Upon the final trial the referee reported in favor of defendants for $945.30, besides costs. From the judgment entered thereon plaintiffs appealed. An order was made by the General Term sending it back to, the referee to hear and determine, upon the question of costs, upon the matter and evidence contained in the printed case; appellants to pay the present General Term costs and costs of the last trial before the referee. The parties appeared before the referee in pursuance' of the order; he reported that neither of the parties should recover costs against the other. Upon the hearing of the appeal, the judgment was modified to conform to the referee’s report. Defendants thereupon appealed to this court. Held, that the order sending the case back was not reviewable; it was a mere matter of practice, over which the General Term had jurisdiction; it deprived the defendants of no substantial right, as it gave a hearing de novo. The case was to be treated here as if the referee- had decided in the first instance that neither party should recover costs. This was a matter of discretion, and not appealable.' John H. Reynolds for the appellants. J. B. Staples for the respondents. [MAJORITY] Earl, CL, reads for affirmance. Leonard, 0., not sitting. All concur. Judgment affirmed, without costs to either party upon appeal.