Opinion
May Term, 1898.
W.E. Davis, for the appellant.
C.W. Stanton, for the respondent.
The right to costs is one which is created by statute, and consequently they can be awarded only in cases which are clearly within some statutory provision. ( Fargo v. Helmer, 43 Hun, 17; Patterson v. Burnett, 17 Civ. Proc. Rep. 115.)
In this case, as we have seen, a trial was had, and although a result was reached, no judgment was entered, but the exceptions were ordered to be heard in the first instance at the General Term. The hearing which followed was simply a motion for a new trial, and the only statute authorizing the allowance of costs upon the decision of such a motion is section 3236 of the Code of Civil Procedure, which provides that, "costs upon a motion in an action where the costs thereof are not specially regulated in this act * * * may be awarded * * * in the discretion of the court or judge."
It is apparent, therefore, that, before the prevailing party upon any motion can become entitled to costs, the court before which the motion is made must, in the exercise of its discretion, specifically award them.
Had the General Term awarded the defendant costs, he would, undoubtedly, have been entitled to the several items allowed by the taxing officer. (Code Civ. Proc. § 3251, subd. 4.)
It is to be noted, however, that the section just cited does not authorize the award of costs; it simply establishes the rate at which they shall be adjusted in certain cases where they have been awarded; and inasmuch as in this instance no costs were awarded to either party, we are unable to discover any theory upon which the order appealed from can be sustained.
All concurred.
Order reversed and taxation modified by striking out all the costs of the General Term, without costs of this appeal to either party.