#### NORTON v. FANCHER.

(Supreme Court, General Term, Fifth Department.

December 28, 1895.)

1. Contract—When an Entirety—Performance.

One who contracts, for an expressed consideration, to furnish the materials and complete certain improvements on the land of another, cannot recover for loss or injury to the uncompleted work occurring without fault or negligence of the owner, which he was obliged to make good to complete his contract.

3. Costs—When Recoverable of Course.

Code Civ. Proc. § 3228, subd. 4, providing that a plaintiff, on recovery of 850 or more in an action for the recovery of money only, is entitled to costs of course, leaves no discretion in the court, and applies equally to actions at law and in equity.

8. Same—Appeal—Review of Taxation of Costs.

The action of a court in refusing to allow costs to which plaintiff is entitled by statute in an action at law is reviewable on appeal.

Appeal from special term, Erie county.

Action by Ralph T.. Norton against Albert T. Fancher. From a judgment for plaintiff for a smaller sum than prayed for, and denying him costs, he appeals.

Modified.

The action was brought to recover the balance alleged to be due upon a contract entered into between the parties, by the terms of which the plaintiff, for a consideration duly expressed, undertook to lay a quantity of tile, and to do certain filling and grading upon the defendant’s premises. There is no question but that the work was satisfactorily peí formed and the contract in all respects fulfilled upon the part of the plaintiff, but it appears that, while *1033engaged in its performance, 897 cubic yards of earth filling was washed out of the ravine into which it had been placed, by reason of the occurrence of an extraordinary freshet, and without any fault upon the part of the plaintiff. The earth thus washed out was replaced by the plaintiff, and he claimed the right to recover therefor at the same rate fixed by the contract for doing' the work originally. By the stipulation of the attorneys for the respective parties, a jury trial was waived, and the action was tried by and before the court, which awarded the plaintiff the balance due upon the contract, not including the claim for replacing the earth washed out by the freshet. No costs were allowed to either party.

Argued before LEWIS, BRADLEY, WARD, and ADAMS, JJ.

Stone & Norton, for appellant.

Walter S. Jenkins, for respondent.

ADAMS, J.

It is conceded by both parties that the contract which constitutes the subject-matter in this action was entire in its character. By its terms, the plaintiff was to perform certain work and accomplish certain results at a stipulated price. While the work was progressing, an- unavoidable accident occurred, and a considerable portion of the earth filling was washed away, without the fault of any one, in consequence of which it had to be replaced by ihe plaintiff. This, undoubtedly, proved a serious matter for the plaintiff, and put him to trouble and expense not contemplated by either himself or the defendant at the time of entering into the contract; but, for this very reason, which probably accounts for the contract being silent upon the subject, the law requires that he shall be the sole sufferer. Harmony v. Bingham, 12 N. Y. 99; Tompkins v. Dudley, 25 N. Y. 272; Williams v. Vanderbilt, 28 N. Y. 217; Dexter v. Norton, 47 N. Y. 62; Booth v. Mill Co., 60 N. Y. 487.

The troublesome question presented by this appeal arises upon the omission of the trial court to award costs to the prevailing party. The action was one at law. A money judgment was demanded, and the amount recovered by the plaintiff largely exceeded the sum of $50, and yet he was denied costs. This determination is undoubtedly accounted for by the fact that the parties waived their right to a jury trial, and agreed to submit their differences to the court, which tribunal thereupon treated the case as of an equitable nature, and one in which the rule as to the a warding or withholding of costs might be applied upon equitable principles. Had the learned justice been at liberty to adopt such a rule, there is much in the case which would seem to justify the conclusion reached; but I think the action is one in which the court was deprived of the right to exercise its discretionary power in respect of the matter of costs. As has just been suggested, the plaintiff’s complaint demands judgment for a sum of money; and therefore, whether the action was one cognizable by a court of law or equity, in the event of a recovery of an amount exceeding $50 he was entitled, as a matter of right, to his costs. Code Civ. Proc. § 3228, subd. 4; Murtha v. Curley, 92 N. Y. 359.

But it is contended the error is one which should be corrected by motion, and not made the subject of appeal. This would be so, undoubtedly, if it were the result of mistake or inadvertence, and not *1034■an error of judgment. Genet v. Canal Co., 113 N. Y. 472-475, 21 N. E. 390; Stannard v. Hubbell, 123 N. Y. 520, 25 N. E. 1084. The learned trial justice has assumed, however, to adjudicate the matter -of costs; and, if the action were really equitable in its nature, it is very clear that his judgment could be reviewed only by appeal. Stevens v. Veriane, 2 Lans. 90. In the case cited, the court (see ■opinion, Mullin, J.) appeared to think a different rule would obtain in an action at law; but I am unable to conceive of any reason why this should be so, for, in assuming that he had the right to refuse ■costs, the learned justice committed a judicial error, just as much as he would have done had he reached an improper conclusion upon the merits; and it is well settled that any change or modification •of a judgment which involves the merits of a controversy can only be accomplished by an appeal or a motion for a new trial. McLean v. Stewart, 14 Hun, 472; Rockwell v. Carpenter, 25 Hun, 529.

The judgment appealed from should therefore be amended so as ••to award costs of the action to the plaintiff, and, as thus amended, should be affirmed, but without costs of this appeal. All concur, •except WARD, J., not voting.