People ex rel. Bray v. Board of Supervisors

65 How. Pr. 327

Opinion

Westbrook, J.

— The general term has affirmed the order of the special term granting, in the above entitled proceeding, a peremptory mandamus, with “ the costs of the appeal.” The question which this motion presents is : What costs are recoverable upon an appeal from an order granting a peremptory mandamus, when such order is affirmed ?

Section 3240 of the Code provides that, “ upon an appeal in a special proceeding,” the successful party, “ in the discretion of the court,” shall recover costs “ at' the rates allowed for similar services in * * * an appeal from a judgment taken in the same court,” unless the costs to be recovered are “ specially regulated in this act.” Unless, then, the amount of costs to be recovered upon an appeal from an order allowing a peremptory mandamus, which is unquestionably a special proceeding, are fixed at a special sum by the Code, this section (3240) controls.

The counsel for the supervisors claims that section 2086 applies. That section does not, in my opinion, fix the costs upon an appeal. It only provides for an allowance of fifty dollars as costs upon the original ajaplication. Neither does any other section, to which my attention has been called, provide specially for costs in a case of this character on appeal. The result is that section 3240, as it now reads (See Throop’s edition of 1882) applies, for it gives, “ upon an appeal in a special proceeding,” the same costs which are given on “ an appeal from a judgment.” It is true that such costs are “in the discretion of the court,” but when the court has allowed costs, it is to be assumed that they allowed such as they had power to award, and that, therefore, in this case, costs as pirovided for in section 3240 are given.

The motion to correct the taxation by the clerk, who has allowed costs as upon an appeal from an order made upon a simple motion, is granted, with ten dollars costs.