Dickson agt McElwain.

that class of appeals. The first section in that chapter specifies the cases in which an appeal may be taken. The next section, which is the 334th, declares that before the appeal shall be effectual for any purpose, security for costs shall be given in the manner prescribed. The provisions of this section, as well as the succeeding sections in the same chapter, relate exclusively to the subject of the chapter, which is, "appeals to the Court of Appeals." They have no application to appeals brought under the three succeeding chapters of the title relating to other appeals. Each of these chapters contains its own provisions in relation to proceedings upon the appeals it authorizes to be brought.

When the appeal is from the decision of a single judge to the general term, no security whatever is required, but if the party appealing would have a stay of proceedings, he must obtain an order for that purpose, or give the security prescribed by the 348th section. The proceedings upon the appeal are, therefore, regular, and the motion must be denied; but as the question is new, it should be without costs.

SUPREME COURT.

DICKSON agt. MCELWAIN.

COSTS.

An order granting an extra allowance of costs (§ 308), and costs of the motion, is not the subject of review by appeal. Such allowance or disallowance, are matters resting entirely in the discretion of the judge who holds the court.

Albany General Term, September 1852-PARKER, WRIGHT, and HARRIS, Justices. Appeal from an order granting an extra allowance of costs. The action was brought upon a promissory note. Before the time for answering expired, an order enlarging the time to answer twenty days, was served. Before the time expired, an answer was served; to which the plaintiff replied, and he also served a notice of trial. Before the trial the defend

Dickson agt. McElwain.

ant served an amended answer, the effect of which was to throw the cause over the circuit. Before the next circuit, the defendant served on the plaintiff's attorneys an offer to let judgment be entered for the amount of the note. This offer was accepted, and upon this state of facts the plaintiff moved for an extra allowance, on the ground that the defence had been unreasonably or unfairly conducted. The court, at special term, made an allowance of ten per cent on the amount of the recovery, and also ten dollars for the costs of the motion. From this order the defendant appealed.

A. C. GEER, for Plaintiff.

N. MILLER, for Defendant.

By the Court, HARRIS, Justice.-The making of an extra allowance, under the 308th section of the Code, is, from the necessity of the case, a matter resting in the discretion of the court, to which the application is made. It depends upon the question whether the trial has been difficult or extraordinary, or whether a prosecution or defence has been unreasonably or unfairly conducted. This question must, of course, be decided according to the impression which the facts and circumstances presented may make upon the mind of the judge who holds the court. The same facts and circumstances may make a very different impression upon other minds. There is no legal test by which, upon a review, the propriety of the decision can be determined. Though the order has the effect to increase the judgment against the unsuccessful party, it can not, from the very nature of the question, be the subject of review, upon appeal. The opinion of the judge who made the order is as likely to be right as the opinions of the judges who sat in review.

Nor can that part of the order which grants costs upon the motion be reversed upon appeal. The costs of a motion are always in the discretion of the court (Code, § 315). It has not been usual, at least so far as my own experience allows me to know, to allow costs upon such a motion. It is a matter of right for the successful party to present the case to the court for an extra allowance. It is equally a matter of right for the unsuccessful party to resist such application. The decision, upon the

Hoyt agt. Carter.

application, rests very much in the discretion of the court; and in such cases, it is not usual to charge either party, whatever the result, with the costs of the motion. But, though we might have been better satisfied with the order, if no costs had been given upon the motion, it is not the subject of review, and the appeal must, therefore, be dismissed. I think, however, it should be without costs.

SUPREME COURT.

HOYT agt. CARter.

Where a temporary injunction is allowed, and the complaint in the action is subsequently dismissed, the injunction ipso facto falls with it. Nor can an appeal restore the injunction. It can only be restored by a reversal of the judgment.

But where an appeal has been taken from such judgment of dismissal the plaintiff can apply to the court, on notice, to restrain the proceedings of the defendant until the decision upon the appeal. The court by its original power over the parties is authorized to grant such an order.

Albany Special Term, 1851. Motion to vacate order. The action was commenced in December 1849. The object of the suit was to restrain the defendant from diverting a water course. Upon the commencement of the suit, a temporary injunction was granted according to the prayer of the complaint. The cause was tried at the January circuit in Rensselaer, before Mr. Justice HARRIS, whose decision was filed on the 2d of August 1851. By this decision, it was determined that the plaintiff had not sustained his action, and that the complaint should be dismissed with costs. Judgment was entered upon the decision on the 4th day of September.

Upon an affidavit showing that the defendant had commenced operations for the purpose of diverting the stream, and that the plaintiff was about to appeal from the decision, Justice HARRIS, on the 6th day of September made an order so far modifying his decision as to allow the temporary injunction which had been

Hoyt. agt. Carter.

granted at the commencement of the trial, to stand and remain in force until the time for the plaintiff to appeal should have expired. At the time of making the application for the order, no notice that judgment had been entered had been served on the plaintiff's attorney. This motion was made to set aside the order of the 6th of September, with costs.

JOB PIERSON, for Plaintiff.

J. E. TAYLOR, for Defendant.

HARRIS, Justice.-This motion must be granted. The order was improperly made. The judge who tried the cause having made his decision, and the same having been filed, it could not be altered by him. It was like a verdict of a jury. If erroneous or defective it could only be corrected or amended upon application to the court. It had passed beyond the control of the judge. Judgment having been perfected upon the decision, the suit was thereby terminated, subject only to be reinstated by an appellate court. The complaint being dismissed, the injunction, ipso facto, fell with it (1 Barb. Ch. Pr. 644). Nor would an appeal restore the injunction. The complaint having been dismissed and the injunction thereby discharged, it could only be restored by a eversal of the judgment. The act sought to be restrained can only be prevented by an appeal to the original power of the court over the parties before it. Hart vs. The Mayor of Albany (3 Paige, 381), furnishes an example of the exercise of such original power. In that case, the chancellor had made an order dissolving the injunction. From that order an appeal to the court for the correction of errors had been taken. While the appeal was pending, the complainants presented a petition to the chancellor, asking that the defendants might be restrained from doing the act which had been prohibited by the injunction, until the decision of the appellate court. Upon the facts presented, the chancellor made an order to that effect. "The only reasonable ground of objection to such a proceeding" says the chancellor, "is, that it seems inconsistent for the court to make an order to restrain a party from proceeding, after it has, upon a full hearing of both parties, decided that he has both a legal and equitable right to proceed."

Hinds and others agt. Mutual Insurance Co.

The order of the 6th of September must be vacated, with $10 costs of the motion, to abide the event of the suit, but without prejudice to the right of the plaintiff to apply to the court, upon notice, to restrain the proceedings of the defendant, until the decision upon the appeal, if any has been or shall be taken

SUPREME COURT

HINDS AND OTHERS agt. THE SCHENECTADY COUNTY MUTUAL INSURANCE COMPANY.

COSTS.

Now as before the Code, the travel fees of a witness, residing out of the state, must be estimated by the number of miles he travels from the boundary line of the state to the court.

Albany Special Term, 1852. Motion for readjustment of costs. The cause was tried at the Schoharie circuit, and, after the trial, the plaintiffs recovered a verdict. Upon the taxation of costs the plaintiffs claimed and were allowed for the travel of a witness from Somerville, in the state of Wisconsin, 1744 miles.

J. C. RAMSAY, for Plaintiffs.

P. POTTER, for Defendants.

HARRIS, Justice.-Under the fee bill of the Revised Statutes, when a witness came from another state, his traveling fees were estimated from the boundary line of the state, where he passed in coming to the place of trial (2 R. S. 642, § 33). The fee bill of 1840 changed the rate of compensation for traveling, and omits the clause in the former act requiring the fees to be estimated from the boundary line of the state. It is argued by the plaintiff's counsel, that this omission is evidence of legislative intention to change the rule. It is insisted that, in as much as by the present law a witness is entitled to four cents per mile going and returning, without restriction or qualification, the pro