Hearn v. Sullivan

The clerk did not err in allowing costs as in an action. The order of the special term, awarding costs, was his guide. The order was “ that the defendants have judgment for costs and disbursements of this action.” The order designates the proceeding as “an action,” and the remedy, if any, was by appeal from the order, and not by appeal from the taxation of this clerk, and thus to ask one special term to overrule another.

But the order of the special term was right. It is unnecessary to discuss the question whether this proceeding was a “special proceeding” or an “action,” for the statute (3 R. S. [6 ed.] 97, § 48), has declared that when costs are awarded in such a matter they shall be “as in actions against executors,” and although it was a “special proceeding,” the court had power (Code Civ. Pro. §3240) to award costs “as in actions brought in the same court.”

Motion denied, with $10 costs.