was an action on a contract within section 150 of the Code. Tbis comes far short of bolding tbat in sucb an action tbe plaintiff, if be recovers, is entitled to costs as a matter of course.
If these costs are in tbe discretion of tbe court tbe referee, in tbe exercise of it, held and decided tbat tbe plaintiff was not entitled to them until after one of tbe defendants was brought in, and tbat was after tbe trial was commenced at Special Term. Tbe clerk was bound 'to conform to tbe judgment in tbe adjustment of tbe costs in tbe cause, and having refused to do it, tbe judge at Special Term was right in setting it aside and disallowing costs not in conformity to tbe judgment.
If tbe plaintiff was right in bis position tbat be was entitled to tbe whole costs in tbe cause, notwithstanding tbe decision of tbe referee, tbe error could not be corrected by motion. Tbe costs were part of tbe relief granted in tbe cause, and any error in tbe relief could only be reached by appeal from tbe judgment. (Clarke v. City of Rochester, 34 N. Y., 355; McGregor v. McGregor, 32 id., 479.)
Tbe orders of tbe Special Term are affirmed, with ten dollars costs, and disbursements in one appeal only.
Present - Mullin, P. J., Talcott and Smith, JJ. Orders of Special Term affirmed, with ten dollars costs, and disbursements in one appeal only.