New York County NyArchives Court.....Marshall, Henry Vs. John Boyer 1889
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Source: Reports Of Cases - New York
Written: 1889

Fifth Department, March Term, 1889.

HENRY S. MARSHALL, Appellant, v. JOHN BOYER, Respondent.

Sight of a defendant to have costs stricken from a judgment — not waived by an 
appeal from it — permission to move to correct a judgment of the General Term 
must be obtained from that court.

Upon an appeal from an order striking from a judgment-roll the costs inserted 
therein in the plaintiff's favor, it appeared that the action was tried before a 
referee, who found that there was due to the plaintiff sixty-four dollars and 
ten cents, and awarded judgment for that sum without costs to either party. The 
plaintiff's attorney disregarded the direction as to costs, procured costs to be 
taxed in his favor and inserted the same in the judgment.

The defendant appealed from the judgment to the General Term, where it was 
affirmed. Thereafter the defendant noticed a motion at Special Term, founded on 
the pleadings and affidavit, for an order to strike from the judgment so 
affirmed the provision inserted therein relative to costs.

Held, that the plaintiff, by not appealing from the judgment, acquiesced in the 
ruling of the referee that he was not entitled to costs, and that by inserting 
in the judgment a provision awarding costs to himself he was guilty of a serious 
irregularity.

That the defendant did not, by taking an appeal from the judgment so entered to 
the General Term, waive his right to object to the insertion of the costs in the 
judgment.

Pfaudler Co. v. Sargent (43 Hun, 154); Guckenheimer v. Angevine (16 id., 453) 
distinguished.

That the defendant, without first obtaining the permission of the General Term 
to move for an order correcting the judgment rendered by it, so as to make it 
comply with the decision of the referee, had no right to move at Special Term 
for a correction of the judgment.

That if the attention of the appellate court had not been called to the mistake 
or error upon the hearing of the appeal, that court had the power, after the 
order of affirmance was granted, to relieve the defendant by entertaining a 
motion made in due time for a reargument or to modify the order of affirmance, 
and that that right might yet be exercised.

Appeal from an order, made at the Onondaga Special Term striking from the 
judgment-roll the costs inserted therein in the plaintiffs favor, which was 
entered in the office of the clerk of the comity of Cayuga on the 20th day of 
October, 1888.

E. G. Aiken, for the appellant.

H. A. Maynard, for the respondent.

Barker, P. J.:

In view of the situation of the case at the time the order was granted, we think 
it was error for the Special Term to strike from the judgment the provision 
awarding costs to the plaintiff. The action was tried before a referee, who 
found due the plaintiff sixty-four dollars and ten cents, and awarded judgment 
for that sum, without costs to either party. The plaintiff's attorney 
disregarded the direction as to costs and procured costs to be taxed in his 
favor, in amount $154, and inserted the same in the judgment, which was filed 
July 3, 1888. Thereupon and upon the seventeenth day of July, the defendant 
appealed from the judgment to the General Term, filing an undertaking to pay the 
judgment if affirmed, and afterward, and on the third of October following, the 
judgment was affirmed, and on the next day judgment of affirmance was entered in 
the proper clerk's office. In September the defendant noticed a motion for the 
sixth day of October, founded on the pleadings and affidavits, for an order to 
strike from the judgment the provisions inserted therein relative to costs, 
which was opposed by the plaintiff, who presented an affidavit which stated that 
the judgment had been affirmed by the General Term. On the trial and on this 
motion the plaintiff contended that this was an action at law, and that as he 
recovered more than fifty dollars, he was entitled to costs as matter of right 
under the provisions of the statute; on the contrary, the defendant insisted it 
was an equitable action, and the costs were in the discretion of the court.

The plaintiff, by not appealing from the judgment acquiesced in the ruling of 
the referee that he was not entitled to costs, and by inserting in the judgment 
a provision awarding costs to himself, he was guilty of a serious irregularity. 
We think after taking an appeal the defendant might have moved for a correction 
of the judgment at Special Term at any time before judgment was affirmed. After 
appeal the cause remained in the same court in which it originated. It is 
claimed by this appellant that by taking an appeal to the General Term the 
defendant waived the right to object to the insertion of costs in the judgment-
roll, and cites in support of his views Guckenheimer v. Angevine (16 Hun, 453), 
Pfaudler Co. v. Sargent (43 Hun, 154).

On an examination of these cases it will be seen that they hold, and nothing 
more, that by appealing from the judgment the appellant waives the right to move 
for a retaxation of costs for the purpose of striking out some one or more of 
the items erroneously inserted in the bill. The question now presented is very 
different and more important than the one determined by the cases cited. Here 
the grievance complained of is that the judgment, as entered, does not conform 
to the direction of the court, and is in direct violation of one of the 
questions determined by the decision. By the rules of practice the Special Term 
is the proper court in which to move in due time to correct errors of the 
character of the one presented by these papers. But by another rule of this 
court, which cannot be disregarded, we think the defendant has lost the right to 
move for a correction of the judgment without first obtaining permission of this 
court for leave to move for an order correcting the same so as to make it comply 
with the decision of the referee. This court has the power, on appeal from a 
judgment entered on the decision of a Special Term, or the report of a referee, 
to reverse or affirm, wholly or partly, or to modify the judgment appealed from. 
(Code Civil Pro., § 1317.) Where this court on appeal affirms a judgment, 
entered on the decision of a Special Term, or the report of a referee, it is to 
be presumed that it has examined and disposed of every question disclosed by the 
record, according to the right of the matter, and that no error has occurred of 
which the appellant can rightfully complain. Such a judgment is final, so far as 
this court is concerned, and without its permission no further action can be 
taken to change, alter or modify the judgment as it was affirmed. Otherwise, a 
cause would never be at rest, and there would be confusion and inconsistency in 
the judgments of the courts. (Gelston v. Codwise, 1 Johns. Ch., 189; 4 Wait's 
Pr., 243.) By granting the order appealed from, one of the questions considered 
and determined on the trial is again started, and if this kind of practice 
should be permitted, there would never be an end to litigation. If the error of 
which the defendant now complains appear in the record presented to this court 
on the appeal from the judgment, this court had the undoubted power to correct 
the same by modifying the judgment so as to conform it to the decision of the 
referee; or it could have, in the order of affirmance, permitted the defendant 
to move for correction of the judgment at Special Term. If for any cause the 
attention of the court was not called to the error or mistake, it had the power, 
after the order of affirmance was granted, to relieve the defendant by 
entertaining a motion, made in due time, for a reargument, or to modify the 
order of affirmance, and that right may yet be exercised. The effect of the 
order appealed from was to change and modify the judgment of this court, which 
the Special Term had no power to do. 

Order appealed from is reversed, without costs of this appeal.

Dwight and Childs, JJ., concurred.

Order appealed from reversed, without costs of this appeal.

Additional Comments:
Reports of Cases Heard and Determined in the Supreme Court of the State of New 
York. Marcus T. Hun, Reporter. Volume LIX, 1889, HUN 52. Banks & Company, 
Albany, NY. 1901.

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