Wheeler v. Roberts & Roberts

7 Cow. 536

• Court: New York Supreme Court
• Decided: October 15, 1827
• Status: Published

Opinion

Curia.

This judgment for costs cannot, at any rate, be sustained in its full extent; and we think, upon the present state of the law, costs are not allowable at all on reversing a judgment of a justice’s court on certiorari. The right to full costs here is put on the ground that the act of 1824, (sess. 48, ch. 238, s. 43,) by repealing the act of 1813, (1 R. L. 397, s. 18,) allowing $25 costs, revived the act of 1801, (1 K. & R. 501, s. 19,) which allowed the full costs of this court. Recognizing, as we do fully, the rule that a repealing statute, which is itself repealed, revives the first statute; yet the consequence contended for does not follow; for there was an act of 1808, (sess. 31, *ch. 204, s. 17,) which limited the costs to $25 ; and which itself, (s. 31,) repealed the act of 1801. Thus, the statute of 1808 is to be revived, if any; and this would reduce the costs of the judgment one half. But the plaintiff in error has another .difficulty in his way. The statute of -1808 was repealed, not merely by implication arising from the statute of 1813 ; but by the general repealing act of tpe 2.3th of April, in the same year. (2 R. L. 556.) This repealing act remains in force, and is not repealed, or affected by the statute of 1824. We pass by the act of 1818, (sess. 41, ch. 94,) extending the jurisdiction of justices, as not touching the question. Thus, the whole case is left, as the legislature doubtless intended it should be, to stand on the act of 1824. This gives a certiorari in a few cases only, excepted out of the general remedy by appeal. (Vid. s. 36.) But it is silent as to costs. These, then, stand on the common law footing; which is, that each party shall pay his own costs, without the means to recover them of his adversary.

The consequence is, that the plaintiff cannot be entitled to costs; and his judgment and execution must be set aside in toto.

Rule accordingly.