Board of Supervisors v. Bristol

The difficulty in this ease arises out of the irregularity in the practice adopted by the parties following the decision of the appeals.

Regarding the notes in the record, declaratory of the decision of the general term, as a memorandum merely, and the appeals have never been properly disposed of on the record. The memorandum should have been followed on the record by a judgment declaring the decision or adjudication suggested by it, fully, as regards any, and all rights to which the parties were entitled under it. The memorandum was, “ judgment affirmed, with costs.” There were cross-appeals — one was taken by the plaintiff, the other by the defendants (except Bristol and Hathaway); and, although both appeals were submitted to the court and decided by it, but one entry upon the record, declaring an affirmance of the judgment appealed from was necessary or proper, with an emendation or addition, awarding costs to the party or parties entitled thereto by law, or to such as the court should give costs to in case they were in the discretion of the court. In this case the costs were given by law, as “ of cowrseP Their allowance or disallowance was not in the discretion of the court. This is apparent *8on reference to the pleading, and to the provisions of the Code, relating to costs on appeal. The action was a common-law action for the recovery of money only, hence the successful party was entitled to costs by law, as a matter of right; and the same on appeal inasmuch as the judgment appealed from was wholly affirmed; not affirmed or reversed in part. The words “ with costs ” in the memorandum did not and could not, in this case, affect the rights of the parties in their claim to costs, on the appeals. Their rights, in that regard, were fixed and determined by the law itself. If those words had been omitted the rights of the parties to costs would have been the same.

The entry of judgment was also irregular in this; costs of appeal were thereby awarded against Bristol, who had not appealed. He was not chargeable with costs with his associate defendants, who, without him, took the appeal. The costs of the appeals were allowable against the appellants only as to whom the judgment was affirmed (Hawk agt. Bishop, 10 Hun, 501). This error, however, Bristol should have corrected, on motion, at special term, rather than by appeal, the entry of judgment, as to him, having been made m parte.

But this point is of no great moment in this ease, as will be seen in the sequel.

How, let us see how the parties stood on the record in this case. The plaintiff appealed from the entire judgment. On this appeal the judgment appealed from was affirmed, not in part, but in toto. The law declares, that if the judgment be affirmed, costs shall be awarded to the respondent. Therefore, on this (the plaintiff’s appeal) the respondents were entitled to their costs by law, as a matter of right. So the Code declares, in express terms.

The defendants, except Bristol and Hathaway, also appealed in like manner, as did the plaintiff — that is, from the entire judgment. This appeal was also submitted to the court and was determined by it. On this appeal, too, the decision was that the judgment should be affirmed. So it necessarily fol*9lows that the respondent on this appeal was entitled to costs. The right to costs was determined on this appeal, the same as on the plaintiff’s appeal. Thus it is seen that the court could not deprive the respondents, on each separate appeal, of costs, because they were awarded by law as a matter of absolute right. Both were argued and submitted to the court for decision, and both were, in fact, decided. The judgment appealed from was affirmed.

Thus it is seen that the respondents, on each appeal, succeeded and became, as regards the respective appeals, a “ successful ” party.

The defendants’ counsel urges that, although they (the defendants) appealed and, as the record shows, “from the whole judgment and every part thereof,” yet they did not desire its reversal, and argued before the court to sustain it. They were, nevertheless, appellants on the record. A party cannot be allowed to escape the costs which the law gives to his successful adversary by aiding him to obtain them. The court must look to the record in giving effect to the law. The remarks of the court in Wilson agt. Palmer (5 Weekly Dig., 507), with trifling change of language, will well apply here, as to the allowance of costs against an unsuccessful party on appeal. He cannot be allowed to say that it was not intended to review any particulars of the judgment, the appeal being from the entire judgment. He brings the appeal and must abide the consequences of its due disposition on the record. In this case the respondents, on each separate appeal, were entitled to costs.

But, as above suggested, there could be regularly but one judgment, both appeals having been heard together, and the judgment of simple affirmance whereby both were determined; that judgment should declare the affirmance, and should, in due form, award costs to the parties entitled to them by law, and against those who were by law bound to pay them. To this end there might be separate clauses in the entry of judgment. In this case, however, where a set-off of costs would *10seem proper, a clause to that end, following explanatory recitals, might he entered, if not without application to the court, certainly on application at special term. The motion here under review, was sufficiently broad and comprehensive to meet the exigency of the case on the facts. It was, within its just scope, to correct and perfect the record, as regarded the proper entry of judgment upon the facts disclosed. The decision of the motion at special term, should, as I think, have recognized the rights of the respondents on each appeal to costs, and should have directed a set-off of the respondents’ costs on the appeal taken by the plaintiff, in reduction of the amount of the recovery against the former, and limited the recovery and execution against them to the balance only. It is competent for the court, now, on this appeal, to do what the special term should have done in the premises.

If correct in the conclusions above reached, the order appealed from should be modified in a way to meet the suggestions here made; and neither party should have costs against the other, either at the special term or on this appeal.

It is probable that the counsel will now agree upon the proper order to be entered, but, if otherwise, the order must be settled before one of the justices of the court.

Note. — Perhaps there may he some good reason why a set-off should . not be made, as above indicated; and, perhaps, the counsel should be heard on this subject before entering an order in that regard. If so, the entry of judgment should simply contain separate clauses giving to the respective parties the costs to which the affirmance of the judgment entitled them. — (Per Bocees, J.)