Van Wyck v. Alliger , 3 How. Pr. 292 ( 1848 )

The court differed in opinion from the justice, and dissolved the injunction.

On the question of costs, the court said that this was a case where the injunction should have been dissolved by the justice without costs, it not being the practice, where an injunction was dissolved on bill and answer, to allow costs. That it would be equitable to give the appellant all the costs he had been subjected to in consequence of the erroneous decision, which would be the costs of the motion to obtain the order for rehearing and of the rehearing itself, leaving the costs of the motion before the justice to abide the event of the suit. But that they were satisfied they had not the power to give the appellant such costs. That the 270th section of the code provided that no costs should be allowed on a motion, except costs of resisting, in the discretion of the court. That this rehearing was a motion within the meaning and language of this section, and the court had not, therefore, the power to award costs. That the section referred to was applicable to all motions, as well on a rehearing as on the original hearing—whether such would be the construction if it had been on appeal it was not necessary then to decide, though the definition of “motion” as given in sections 537 and 538 would seem to cover such a case also. That the order directed to be entered would therefore be silent on the subject of costs, leaving the Defendant to tax the costs of both motions in the event of his succeeding in the suit.