Opinion
July Term, 1899.
George Wallace, for the appellant in each case.
Thomas Young, for the respondent.
Section 3258, subdivision 1, of the Code of Civil Procedure provides that in an action where the complaint demands judgment for a sum of money only, or to recover a chattel, or on the making of a final order in favor of the defendant in a special proceeding instituted by State writ, the defendant, if a public officer, is entitled to recover the costs prescribed in section 3251 and one-half thereof in addition thereto. But section 3251 has no application to a writ of certiorari. Section 3240 provides that costs in a special proceeding, where the costs thereof are not specially regulated by this act, shall be at the rates allowed for similar services in an action. But costs on certiorari are specially regulated in the Code, for section 2143 authorizes costs to be awarded in such a proceeding, not exceeding fifty dollars costs and disbursements. The object of section 3258 was not to prescribe the rate at which costs are allowed in special proceedings or actions, because the amount of such costs is fixed by other sections. It intended simply to give a public officer, in suits or proceedings against him, one-half as much again in costs as would be awarded to private individuals. There is no notice of trial on a writ of certiorari, nor is the hearing on the return to such a writ the trial of an issue of fact. The costs in the proceeding must be fixed by this court. (See People ex rel. Green v. Smith, 13 Hun, 227, and People ex rel. Smith v. Village of Nelliston, 79 N.Y. 638.) The order made by us was defective in that it awarded costs, without specifying any particular sum. This doubtless we can now correct, but, without our order, the clerk has no authority to tax any costs in the proceeding. The case of People ex rel. Bates v. Speed (73 Hun, 302) is not in point. In that case the defendants had final judgment after return to a writ of alternative mandamus. By section 2086 where the alternative writ is issued the costs are the same as in an action. Had a peremptory writ been issued in the first instance, by the same section, the costs would have been limited to fifty dollars.
The orders appealed from should be reversed, without costs, and the items taxed by the clerk should be stricken from the judgments, but in lieu thereof should be inserted the sum of twenty-five dollars, which we allow in each case.
All concurred.
Orders appealed from reversed, without costs, and the items taxed by the clerk stricken from the judgments, but in lieu thereof respondent allowed twenty-five dollars costs in each case.