In re the Water Commissioners

1 Silv. Ct. App. 351, 5 N.Y. St. Rep. 744

• Court: New York Court of Appeals
• Decided: February 11, 1887
• Status: Published

Opinion

Per Curiam.

In the case of Sisters of Charity v. Kelly, 68 N. Y. 628, we construed the words “ with costs,” in an order of reversal or affirmance in this court, in a case where the allowance of costs is discretionary, as meaning costs in this court only. The case of Murtha v. Curley, 92 N. Y. 359, was one where the prevailing party was entitled to costs as of course, and the decision was placed upon that ground. The rule we established in Sisters of Charity v. Kelly, has been followed since the decision of that case, unless by inadvertence. The reversal on the original appeal in this case was “with costs,” and, as construed, entitled the appellant to costs in this court only. If the appellant deemed himself aggrieved, his remedy was to apply to this court for an amendment of the order. The order of the general and special terms should therefore be reversed, and the taxation by the clerk affirmed. But, as the appellant may have been misled by a remark in the opinion in Murtha v. Curley, as published in 3 Civ. Proc. R. 265, but intentionally omitted in the opinion as published in the regular series, we think the reversal should be without costs

All concur.