Van Gelder v. Van Gelder

Where in an equity action the defendants answered separately and a judgment in their favor was affirmed in this court with costs “to the respondents,” held, that this authorized but one bill of costs. The allowance of costs in the Supreme Court in such an action, and whether to one or more respondents, is in the discretion of the -court below, and its decision is not reviewable here.

These were appeals from two orders of General Term of the Supreme Court, one of which reversed an order of Special Term which directed the retaxation of costs of appeal to this court; the other reversed an order of Special Term which directed a retaxation of costs on appeal to the General Term. The action was an equity one. The defendants answered separately. The complaint was dismissed on trial without costs to either party. Plaintiff appealed to the General Term, where the judgment was affirmed, with costs. The defendants claimed separate bills of costs which were allowed and taxed by the clerk. The plaintiff moved for a retaxation; he also appealed from the judgment to this court, where the judgment was affirmed,. “ with costs to the respondents.” Upon entry of judgment upon the remittitur separate bills of costs were allowed and taxed by the clerk. Held, that the order giving each respondent costs of appeal to this court was erroneous. The court say:. “ Costs were given in this court c to the respondents ’ but not to each respondent; one bill only should have been allowed.” As to the order relating to costs in the Supreme Court, held, that the allowance was within the discretion of -the court below, and the action of the clerk having been approved by that court, as appears by the order appealed from, this court had no control over it. (Herrington v. Robertson, 71 N. Y. 280 ; Taylor v. Root, 48 id. 687.)