Savage agt. Gould et al. (The Bridgeport F. & M. Ins. Co. agt. Wilson, 20 How. Pr., p. 511; Cullomb agt. Caldwell, 5 How. Pr. Rep., p. 336). As all of the respondents were successful, it did not become necessary to apply to the court for direction in regard to an allowance of costs under subdivision 2, section 306, of Code of Procedure. The court at general term, by its order of affirmance, allowed costs to the respondents without restriction; and, hence, we conclude that they were to be adjusted according to the rules and practice of this court. The item of ten dollars for preparing amendments to the return, on the appeal, was unauthorized and should not have been included in the costs, as section 307 of the Code of Procedure does not apply to such a case, and as the court had not by its order directed payment for that service, it cannot be included in costs. From the time of the service of the petition of appeal, the proceeding so far, at least as the question of costs are concerned, is to be regarded in the supreme court (Dupuy agt. Wurts, 47 How. Pr., p. 225; Seguine agt. Seguine, 3 Abbott's Rep. [N. S.], 442; Hawley agt. Donnelley, 8 Paige Chan. Rep., 415). Consequently it was proper to include the item of ten dollars for all proceedings before notice of trial, also the item of fifteen dollars for all proceedings after notice and before trial. We perceive no substantial reason why those items should not be allowed, as the nature of the services rendered is consistent with the provision of the Code in that respect. The appeal necessitated the trial of an issue of law, and hence the successful party became entitled to a trial fee of twenty dollars. The argument of the appeal was postponed, at the instance of the appellant and by order of the court, one term, and therefore the term fee of ten dollars was properly taxed. The adjustment of costs by the clerk seems to have been correct with one exception, viz., the item of ten dollars for preparing amendments. The costs must be readjusted in accordance with the foregoing; and no costs of this appeal is allowed to either party. VOL. LX 33 Matter of Murphy. SUPREME COURT-SAME TERM. EDWARD SAVAGE, AS GUARDIAN, agt. MARY L. GOULD et al. INGALLS, J.-This appeal was voluntarily submitted and decided by the court at general term, and costs were awarded to the respondents upon affirmance. We conclude that the same rules must apply in regard to costs as in the case first above considered. NOTE.- Gilman agt. Reddington (4 Hun, 640, opinion not reported) is not properly stated in head note. In that case the items for proceedings before and after notice were taxed, and it was admitted by the appellant, in his points and upon the argument, that they were proper. The question therefore was not before the court as to those items, and the same explanation applies to the case of Morgan agt. Morgan (1 Abb. Pr. [N. S.], 40. [REP. SUPREME COURT. IN THE MATTER OF THE APPLICATION OF THOMAS MURPHY FOR A MANDamus. · Comptroller of State — his duties under the acts of 1873 and 1879, as to bill for services of appraiser, appointed by superintendent of insurance depart ment, which bill has been approved by said superintendent. The relator, an appraiser duly appointed by the superintendent of the insurance department, having presented an itemized bill for services as such appraiser, which bill was approved by said superintendent, the duties of the comptroller of the state, under the acts of 1873 and 1879, requiring him then to audit such bill were confined to an examination for the purpose of seeing whether the preliminary steps required by law had all been taken; and he had no power arbitrarily, and on his own sense of right and justice, either to increase, decrease or reject the bill altogether, because the charges as made did not meet his approval. Albany Special Term, 1880. Matter of Murphy. APPLICATION for a mandamus against the comptroller of the state of New York to compel him to audit a bill as approved by the superintendent of insurance. Edward Newcomb, for Murphy. Matthew Hale, for the comptroller. - WESTBROOK, J. On the sixteenth day of October, 1877, Thomas Murphy was appointed by John F. Smyth, the then superintendent of the insurance department, under the provisions of chapter 593 of the Laws of 1873, an appraiser of the real estate covered by mortgages owned by The Manhattan Life Insurance Company of New York, situate in the counties of New York, Kings, Richmond and Suffolk. Mr. Murphy accepted the appointment, discharged its duties, and then presented an itemized, detailed and full bill to the superintendent of insurance, who approved the same. Such itemized and approved bill was then presented, on March 17, 1879, to the comptroller of the state, Frederic P. Olcott, for audit, who reduced the bill from $9,800, at which it had been approved by the superintendent of insurance, to $720, and refused to audit the same as approved. Mr. Murphy declined to accept the bill as audited by the comptroller and re-presented the bill, itemized and approved by the superintendent of insurance, to the present comptroller, James W. Wadsworth, who has also refused to audit the bill as approved. Mr. Murphy now asks for a mandamus to compel him to perform that alleged duty. There are no allegations of fact which are contested or disputed. The application turns entirely upon the powers of the comptroller under the statute, and its language must be clearly in mind previous to any dicussion. Chapter 593 of the Laws of 1873, section 2, provides: "All charges for making examinations of any insurance company, and all charges against any company by any attorney Matter of Murphy. or appraiser of this department shall be presented in the form of an itemized bill, which shall first be approved by the said superintendent and then audited by the comptroller, and shall be paid on his warrant," &c. The act of 1879 (chap. 161, sec. 2) has made no change in this particular. That reads, "The expense of any examination made under this section shall be borne by the company whose affairs are so examined, to be paid by the company to the state treasurer, after being approved by the superintendent of the insurance department and audited by the comp troller." It will be observed that the law requires the following steps to be taken: 1st. An appointment by the superintendent of the insurance department. 2d. The performance of the serv ices by the appointee. 3d. The presentation of "an itemized bill" for all charges for services rendered under the appointment. 4th. That the "itemized bill * shall first be approved by the said superintendent"; and 5th. "Then aud ited by the comptroller." * The question is not, what may sometimes be involved in the use of the words "audit," "audited" or "auditor, " but it is, in what sense is the word "audited" used in this statute? The word, in its primary sense, implies a hearing. If an account is referred to an officer for audit, and no provision is made in the reference for the ascertainment of its justice prior to its examination by the auditor, then, of course, it is such officer's duty to give the matter a full hearing or examination, and decide every question upon its merits. If, however, a tribunal is created for the examination of the bill, and for its rejection or approval prior to its audit by the officer to whom it is referred, then the hearing or examination by such officer is not upon the whole merits of the bill, but it must be limited and confined to an inquiry whether the previous steps required by law have all been duly and regularly taken. In the case now presented, the officer making the appointment the superintendent of insurance-was required to Matter of Murphy. examine an "itemized bill" for the services rendered, which, before its presentation to the comptroller, had to be "first approved by the said superintendent." This was a reasonable requirement of the law, for that officer is presumed to be acquainted with the nature and value of the services rendered. After such approval by the superintendent it is declared, that it must be "then audited" by the comptroller. What does this require of the last named officer? To go over each item of the bill, and raise or reduce it according to his ideas of the propriety of the charge and its value? If he may go over the items of the bill in such a manner, why may he not then also go further and inquire whether the appointment of the appraiser should ever have been made and the services rendered at all, and if in his judgment there should have been no examination of the affairs of the company, reject the bill altogether? Certainly, if the comptroller, because he is authorized to audit the bill, is empowered to examine into the justice of the charges, then he may also determine the whole claim to be unjust and wrong, even though the services were rendered in obedience to law, upon the regular appointment of an officer authorized to make it. No such construction of the act is, in my judgment, admissible. As a mode of ascertaining and fixing the amount of the charges before the bill was presented to the comptroller for audit, was provided by the statute, the latter's duties in the auditing thereof were confined to an examination for the purpose of seeing whether the preliminary steps had all been taken, and he had no power, arbitrarily and on his own sense of right and justice, either to increase, decrease or reject the bill altogether, because the charges as made, though "itemized" and "approved" as the law directed, did not meet his approval. It would be just as proper for an auditing officer to refuse to allow a judgment recovered in due course of law, because, in his opinion, it ought never to have been rendered. The view just presented is not novel, but has been frequently adopted when the auditing tribunal was required to |