The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1855-01-17

n supreme C0urt-General Term.
THE MILLION AND HALF MILLION TRUST yUsp cAsK

py.
Ddrsd Ledra Receiver, and others (origna, biI) and
Learia Receiver and Others u.s. Curtis and oters-The
following opinion rendered by Judge MITCHELL the
Ceurt copcurring:-
The decree or judgment OF this Court rendered
me 3lst ofDecember last sustaining the trusts in the
ause and adverse to the claims of the receiver d.
ected, in substance that the taxable COSTS Of the
Tustees and Of the receiver and OF other parties toge
her with the amounts secured by the trust deeds, be
paid out OF the funds in the hands Of Mr. Palmer spe
a receiver in these actions and II these not sun
ent next out Of the funds in the hands Of Mr. Leav
far those funds covered by the trust deed
necessary for that purpose The bills fled
1912, and answers put in and testimony taken and
losed in December 1850. The peadngs and proofs
HI in writing, and constituted several large volumes Of
printed matter The called for hearing pri
s51, before Mr. Justice King at special term hut was
sreced by him, pursuant TO the Judiciary act to be
rst heard al general term; and IL was so heard on the
eadings and proofs In 1852 The trustees applied to
Of the Justices OF this Court to tax their costs when
he counsel for the receiver objected thai the
houlc be under the Co and tue Justice referred
latter TO the general term for directions The receiver
TOW also objects To the taxation the ground that
appealed from the de and given security in $3.50
(which he insists is stay of all proceedings and
ree The trustees contend that the appeal is no stay,
nless there be security for the payment of whatever
bum the appellant may be decreed to pay. The
Sfpnly questions now necessary to be decided are,
yhether appeal With security in $3.50 stays the taxa
of costs and by what system the taxed
assuming the view of 4j9 OF the Code, that the
Judgment in these actions be entered according to
Code although the action commenced before the
ode then according to 81, the clerk Is to insert
h the entry of the judgment the amount of the costs
aya6e 70 any party; and the judgment would not be
tsompete without such entry AT common law, also the
9mount OF the costs to the prevailing party formed
Proper part of complete judgment In equity also the
,ams practice prevailed before 1885, and then the only
hsnge was to the whole bill of costs to the Decree
instead Of stating the total ia The (sec
psl,) adopts the common law practice An then, that
ent not to execute it. Sec 1886 prevents an appeal on
judgment directing the pay ment of money from stay
.s the execution OF the judgment, unless security be
siven in tie amount therein required; and 342
Rows such undertaking given In this
proceedings in the court below upon the judgment
Appealed from.n Proceedings upon the judgment
hose which n way carry out or enforce the
Judgment, as an execution judgment for the pay
bent Of money, a decree foreclosure and
e process for contempt other cosrcive measures
r judgment to deliver documents property,
Execute conveyance These modes Of proceeding upon
Judgment are specified in 335-6-1-S, and illus
the meaning Of the general phrase afterwards used
Secs $3.50 and 342 and show that it to be construed
II reference to those u stratons, and in analogy with
penn. The taxation adjustment cost not .ing an
fecution OF or proceeding upon the Judgment but
other question + as 10 the rule Of taxing costs To
understand some Of the decisions on that subject more
II may Dc proper to not,;e the legislation on
u the law TO costs both at law and in chancery and
Continued to control to the amount of suits at
NV until $780, system of costs in such suits
adopted. The general principle Of the system
as to pay for particular service certain sum- wheth
VI II took much OF little writing to rform it. The new
ct not merely inconsistent with the old in to
bich 1t applied but IL expressly repealed sections II,
- ~, 81 and 80 OF the Revised Statutes as to
sts These sections related to costs of attorneys and
punsel in the Supreme Court and Common Pleas and of
clerks and critrs in those courts claws ls4o CHI 3ss,
40 and X. 5. 632, s. IL, &c II however provided by
49, that the act should affect any suit proceed
commenced before that took effect This saving
that after that time the law Of is4o was to apply even
suits commenced before 1910. Al common law, aud
thout some statute, succe ssul party had no right
Costs IT. therefore, in any case successtul party
III claim costs he must point statute in force,
I'd not repealed, which gives them to him lie cannot
aim them under a repealed statute, for that has
ased to exist; and he is left therefore, to claim them
N ,der some statute in force when the judgment
rendered Accordingly, under the joint effect OF the
Of lS40 costs could not b. taxed under the sys-
N of the Revised Statutes If the judgment obtained
the act Of 1874 took effect, except perhaps be
o. Brooklyn Bank VS.. w,loughbyJ When the Re,
ed Statutes were adopted they repealed the previous
tptes as 10 costs on the subject Sub 90 of 81
Rs, 1872 but declared that such report should no
et suits commenced In any civil previous TO the
sn Il Is thai @ 70
$hts far the services had been rendered under
b. Before the Revised Statutes, costs on appeal in
on from Justices Court to the County Court,
win the discretion OF the Court-but the Revised Sta
t,gave the appellant full costs If he rendered the
IA jsent against him Slu the Supreme Court held
r ahgh the appeal made before the Revised sta
MI titook effect, that the former statutes repealed
ahat there was then no law regulating the costs in
~ c,of that kind but what to be found in the Re-
lM vStatutes, which, therefore, must govern People
HI ell Berry Va. Herkimer County Pleas W., 2lo) This
Pie decision the ground that other law as to
IL c1but the then in force. like decision
Nh os same principle was mace IN the Supervisors OF
Odaga Briggs g DEMO, 49, under the acts OF
/. IVA. And the Court beld that in quits
med before the act of lS40 II judgment were obtained
Ia under the act OF l844but the ground that the
pous acts Is to costs have been repealed and so be-
q totally extinct, the Court said- When the 3sth
IN Of the act OF 1S40 came to be repealed by the act
w ola all the provisions Of the Revised Statutes
rating the compensation Of councillors and at
BIS the two acts Of 1870 aud ls44," the-e
wp ohec act In force when the suit was Terminated,
osn the costs taxed, bearing upon the subject
lip l75 176.) This case Is different These
ee suits, commenced before the Code took efe;t,
aie Revised Statutes to the costs in such suits,
to this day unre pealed notwithstanding all the
"a ailments of the laws; they not touched by the
AZ 1S40 and 1874, and there has been any act
aS~i,h he Code, and have generally been supposed
Fl NJ TO stand and to have equal force where the
viEere rendered under them. Section $50 of the
Cos amended in 1851, does not by implication repeal
III II makes the provisions Of the code "apply TO
fuproceedings In actions Heretofore commenced, as
fol when an issue, OF law or fact was TO be tried,
tbhe trial and all subsequent proceedings, and
afhdgmept 10 the proceedings to enforce, reach mo-
difreverse Is including the costs of an appeal BY
its terms il TO apply only to the future proceed
ipt the cause. The bills Of complaint drawn and
ssin these cases, and the answers and replies also
brand served and the testimony then taken, and
ther closing the proofs all constituted parts Of the
pand not Of the future) proceedings in the cause
VINE act OF 1901 was passed. lnsse SERVICES, ZOO
wsl rendered under a reasonable expectation that
there to be paid for under the laws then In force.
1mws do remain still in force, and have no applcl
tialess IL be 10 when actions commenc ed
before the Code took effect and the costs had
noibeen taxed nor judgment rendered They cannot be
sal have been allowed TO remain for cases where
judnt had been rendered. but costs not yet taxed;
for judgment the rights OF the parties would bs
fx on a contract, and the subsequent repeal Of the
lavld not affect such rights II Is also entirely
ira the prevailing policy Of the Legislature to allow
ID retrospect, where II does not IMPAIR a
Arrnr he Codn nv xprega ter nat
to to these existing suits, except in the hst part
Of ihch relates only 10 the powers Of the courts,
<sdhe statute OF limitation adopted in II made
10 only TO future actions and causes OF action,
NAlth such statutes affect the remedy only. The
titkhe Code relating TO costs was included in the
paiich was not to apply 10 existing actions; aud
whher sections were, BY the supplementary act Of