#### Blanche A. Burnell, Respondent, *v.*William F. Coles, Appellant.

(Supreme Court, Appellate Term,

February, 1899.)

Costs — On appeal to Appellate Term from order of City Court of New York.

The prevailing party upon an appeal to the Appellate Term, from an order of the Special Term of the City Court of New York directing the issue of an open commission, is entitled, where the reversal is with costs, to the same costs as on an appeal from a judgment, these consisting, under subdivision 4 of section 8251 of the Code of Civil Procedure, of $20 before argument, $40 for argument and $10 on the denial, with costs, of the motion for the open commission.

Appeal by the defendant from an order of the General Term of the City Court affirming an order of the Special Term of the same court denying defendant’s motion to vacate and set aside a bill of costs taxed by the clerk in favor of the plaintiff at $141.55, and ordering the same to stand as a correctly taxed bill.

Moore, Bleecker *&*Wheeler, for appellant.

Percival S. Jones (Henry J. McCormick, of counsel), for respondent.

Freedman, P. J.

Upon plaintiff’s appeal to the Appellate Term of the Supreme Court from the order of the General Term of the City Court affirming an order of the Special Term of the same court directing the issuance of an open commission on defendant’s application, the orders of the General and Special Terms *379were reversed, with costs, and the motion for an open commission, denied, with costs.

Plaintiff’s costs and disbursements were thereupon taxed by the-clerk at $141.55, and the taxation was sustained by the Special and the General Term of the City Court. The objections taken by the defendant to the items allowed in the taxation call upon this court, upon the present appeal to determine what costs and disbursements-should have been taxed.

Subdivision 3 of section 3251 of the Code of Civil Procedure,, in so far as it provides for motion costs and certain disbursements upon motions, has no application to the case at bar. The plaintiff' did not succeed at the Appellate Term upon a motion, but upon an appeal duly and regularly taken from the decision of an inferior-court. Neither have Cassidy v. McFarland, 139 N. Y. 208; and Zinsser v. Herrman, 24 Misc. Rep. 691, any application, for in each of these cases the power of the General Term in allowing costs and disbursements in the same court was considered.

Clark v. Sullivan, 31 N. Y. St. Repr. 756, is also- inapplicable-because, aside from the fact that the question came up collaterally,, the appeal was from an order made by a county judge, which is-quite a different matter from an order of the County Court.

For all that appears from the meager report of that case the-action in which the county judge made the order may have been pending in the Supreme Court and the county judge may have, and probably did act, in the place of a justice of the Supreme Court. In the case at bar the question is, what costs are taxable under the order of the Appellate Term reversing the orders- of the General Term and of the Special Term of the City Court, with costs, and denying defendant’s motion, with' costs. This adjudication was the result of an appeal from the City Court to the Appellate Term of the Supreme Court, and the costs upon such an appeal are regulated by subdivision 4 of section 3251. That subdivision gives to- either party, upon an appeal to the Supreme Court from an inferior court, $20 before argument, and $40 for argument, and that under it no-distinction can be made between an appeal from an order and an appeal from a judgment has been held in Goodridge v. Connor, 66 How. Pr. 143, per McAdam, J.; and in Cusick v. Adams, 47 Hun, 455, per Fish, J. Prior to 1896 appeals from the City Court were heard by the General Term of the Court of Common Pleas, and at that time section 1276 of the Consolidation Act, as well as subdivision 4 of section 3251 of the Code, provided that either party, *380upon an appeal to the Court of Common Pleas, was entitled to $20 before argument, and for argument, $40. After the consolidation by constitutional provision of the Court of Common Pleas with the Supreme Court and the transfer of the jurisdiction over said appeals to the Supreme Court, subdivision 4 of section 3251 was amended by striking out the reference to the Court of Common Pleas and leaving the remainder of that subdivision as it now stands. But the only change worked by that amendment was that the same costs are now given by the provision: *“*To either party upon an appeal to the Supreme Court from an inferior court.” The intent of subdivision 4 of section 3251, as pointed out by'Mr. Justice Fish in Cusick v. Adams, *supra,*is to give the prevailing party upon an appeal to the Supreme Court from an inferior court the same costs when the appeal is from an order as when it is from a judgment. The reasons assigned by Mr. Justice Fish for reaching that conclusion seem to me to be unanswerable, however much I may regret the result, but the remedy is with the legislature. The order appealed from is, therefore, correct in so far as it allows to the plaintiff as costs of the appeal to this court, $20' before argument, ■and $40 for argument. It is also correct in so far as it allows $10 costs on the denial of the motion. These motion costs should have been fixed by the order of reversal, but as the customary allowance is the full sum of $10, the direction of this court that the respondent should have costs of the motion was properly deemed a direction that he have the full amount. Beyond these motion costs, no costs were awarded for any proceeding in the City Court. The reversal of the orders of the City Court with costs meant the costs of the appeal to this court. The additional allowance in the bill of costs us taxed, of $10 costs of reversal of the order of the General Term and of $10 costs of reversal of the order of the Special Term, was, therefore, unauthorized and improper. For the same reason no disbursements should have been taxed, for the order of reversal allowed none.

Under section 3256 of the Code, a party to whom costs are awarded in an action is entitled to include in his bill of costs certain disbursements enumerated in said section, if shown to have been necessarily incurred. This refers to a party finally successful in the action. In any other case in which disbursements may be granted as incidental to interlocutory costs they must be specifically allowed.

*381For the foregoing reasons the order appealed from should be modified by reducing the amount of the plaintiff’s taxable coste to. the sum of $70, and as thus modified it should be affirmed, without costs to either party.

MacLean and Levehtritt, JJ., concur.

Order modified by reducing plaintiff’s taxable costs to $70, andi as thus modified affirmed, without costs to either party.