cause. As the whole comprehends all its parts, he was thus required to hear, as well the part of the cause which related to the costs, as that which related to the damages. The reference thus embraced not only the principal subject-matter, but everything incidental thereto. The referee was required to report thereon; that is, upon the whole subject of the reference, which in this case was the whole cause. (1 C. Reporter, 125, Renouil v. Harris.) A report, to be co-extensive with the cause, must embrace the question of costs as well as damages, or other relief, prayed for in the bill. The 5th section, before cited, enacts, that the report upon the whole cause shall stand as the decision of the court, in the same manner as if the cause had been determined by the court, at a special term, and may be reviewed in like manner. Had this cause been determined at a special term, on pleadings and proofs, the decree would have embraced every question litigated in the cause, whether it related to the costs merely, or to the other relief sought. An appeal would have lain from the whole, or any part of the decree. The referee stands in the place of the judge, holding the special term. Having heard the whole cause upon its merits, he is the most fit person to decide upon the question, whether under § 306 of the code, costs shall be allowed or not, and if so, to which party. That section says that costs may be allowed or not, at the discretion of the court. The referee to whom the whole cause is referred, is the court to whose discretion this matter is confided. It is idle to say he is not the court for this purpose, if his decision is to stand as the decision of the court, and is open to appeal in like manner. Whatever doubts formerly existed, it is now made clear that a judgment may be entered on the report of a referee, in the same manner as upon the decision of a judge, when the cause is tried by him. (§ 267, 278.) The mode of review is the same in both cases. In those actions where costs follow, as a matter of course, they are awarded as well upon the report of the referee as upon the decision of the judge, without any subsequent application to the court. Although legal and equitable remedies have been merged by the code, and the distinction between the two abolished, yet, to a certain extent, the 306th section reminds us of the former practice, as it applies only to cases of equitable cognizance. Other sections prescribe costs in every case, where in actions at common law they were recoverable, and section 306 fills precisely the space which the Court of Chancery occupied, under the former system. A cause, where it is not prescribed by the code to which party costs shall be allowed, and where that matter is left to the discre tion of the court, contains one more element of discussion than other matters of litigation; and the whole cause cannot be said to be decided, unless the question of costs is embraced in the judgment. If such cause be referred to a referee to report thereon, his report is incomplete, unless it covers the question of costs. Those remarks do not apply to cases where only a specific question has been referred. The report can never be broader than the order of reference. The case of Van Valkenburgh v. Allendorph et al., 4 Howard's Pr. Rep. 40, has been urged on the part of the plaintiff, as settling this question in his favor. Mr. Justice HAND, while expressing doubts on the subject, expressly admitted, that it was not necessary in that case, to decide the question, whether a referee, in cases falling within section 306, could report upon the question of costs; and the point was left open. In the present case, it is directly involved and cannot be evaded. While I entertain no doubt in this case, I cannot dismiss the subject without adding, that a decision which should take from the referee the power of deciding on the question of costs, under section 306, in cases where he is charged by the order of reference, with the cause, in contradistinction from a specific question, would be attended with intolerable inconvenience, delay and expense. No court is so well prepared to decide upon the question of costs, as the tribunal which has heard the whole cause and disposed of it on the merits. To put another tribunal in possession of the same means of correctly determining the question, the whole cause must be re-argued as fully as at first. Thus nothing would be gained by the reference, and the delay and expense of a second argument be incurred. So closely is the question of costs interwoven with the main issues in the cause, that courts will never hear an argument upon the question of costs, after the residue of the controversy has been adjusted by the parties. A referee, under the code, is not merely a substitute for a master, under the former practice, but is clothed with the power of a judge at special term. When a specific question is referred to him, his office resembles that of a master; when the whole issue is referred to him, he takes the place of the court; his report thereon stands as its decision, and may be reviewed in like manner. (Code, § 271, 272.) The report of the referee is conclusive until reversed by appeal, or a re-hearing be granted. The present motion, therefore, must be denied. But as doubts have been cast upon the question, and it is also a new one, the motion will be denied without costs, and without prejudice to an appeal or motion for a re-hearing. SUPREME COURT. MATTHEW MORRISON agt. JOHN S. IDE and others. A discontinuance, without the payment of defendant's costs, is a nullity. Where a motion has been granted or denied, and nothing is said about costs in the order deciding it, the clerk can make no allowance for costs of such motion in the final costs of the action. The code provides for no costs of motion, unless the same are allowed and the amount fixed by the court on the decision of the motion. The allowance provided in section 307 of the code, "for all subsequent proceedings before trial, seven dollars," is not chargeable till the cause has been noticed for trial. Rensselaer Special Term, April 1850.-The plaintiff moved to strike this cause from the circuit calendar with costs. The following facts appeared in the affidavits presented to the court. Jefferson county was designated in the complaint as the place of trial. The answer was served 12th November, 1849. Defendants' attorneys moved to change the place of trial to Rensselaer, and the motion was granted on 3d December, 1849. Nothing was said about costs of motion in the order changing the place of trial. On the 21st December, 1849, plaintiff's attorney wrote to defendants' attorneys, saying the action would be discontinued and asking for a statement of their disbursements. On 6th January, 1850, plaintiff's attorney received in answer a statement of the costs claimed by defendants' attorneys, in which the disbursements were stated at $1.92. On 23d of same month, plaintiff's attorney sent to defendants' attorneys notice of discontinuance, and enclosed seven dollars to pay costs and disbursements. On the 29th, the $7 was returned, with notice that defendants' attorneys declined to receive it, and that they would insist upon the payment of $23.92. The seven dollars was again tendered and refused, when defendants' attorneys noticed their bill of costs made out at $23.92 for taxation before the county clerk of Rensselaer, and they were taxed by him at that sum on 18th February, 1850. The bill, as taxed, consisted of the following items: Costs before notice of trial, Subsequent, and before trial, Motion to change place of trial, $10; copy rule, 05, $5.00 7 00 10 05 1 87 $23 92 Payment of such taxed costs was demanded of plaintiff's attorney and refused and on some day defendants' attorneys noticed the cause for trial, and put it on the calendar for the Rensselaer circuit. M. I. TOWNSEND, for plaintiff. SEYMOUR & ROMEYN, for defendant. PARKER, Justice.-The question to be decided is, whether this action was discontinued by the service of the notice of discontinuance, and the payment of five dollars and disbursements. A discontinuance without the payment of costs, is a nullity. (Huntington v. Forkson, 7 Hill, 195; White v. Smith, 4 Hill, 166.) And so it was treated in the present case, by the defendants' attorneys, who claimed that the money tendered was insufficient to pay their costs. The defendants' attorneys were clearly wrong in charging in their costs $7 for their costs subsequent to the notice of trial, and before trial. That item is not chargeable until an action has been noticed for trial. It was intended as a compensation for preparing for trial, after notice of trial; and in this case the notice of trial was not served till after the tender and service of notice of discontinuance. Were the defendants' attorneys entitled to charge $10 for costs of the motion changing the place of trial? Under the late practice, it was not usual to charge either party with costs of a motion to change venue, at the time of deciding the motion. Nothing was said in the rule about costs, and in such case the costs were to abide the event of the suit. The successful party in making out his final bill of costs, inserted the general items allowed in the fee bill for services on special motions. But we have now no such allowance in the fee bill. The code gives no compensation for services on special motions, but the court, in its discretion, is authorized to allow costs on a motion, not exceeding ten dollars. If the judge makes no such allowance in the order, the clerk has certainly no power to review his dis cretion and make an allowance. It is right that the unsuccessful party should pay the costs of such a motion, but such payment cannot be enforced under the code, unless it is provided for, and the amount fixed in the order by which the motion is decided. Perhaps it would be suf ficient to say in the order that costs are fixed at ten dollars to abide the event of the suit. It has been heretofore thought equitable, that the costs of such motions should fall on the party who fails in the suit, rather than on the party who fails in the motion. In this case the defendant was allowed, by section 307 of the code, "for all proceedings before notice of trial, five dollars." This, with his VOL. IV. 39 disbursements, was the extent of his legal claim for costs when the notice of discontinuance was served. The money tendered was, therefore, sufficient, and the cause was legally discontinued. The clerk had no power to tax the costs. He is only authorized, by section 311, to insert in the entry of judgment the sum of charges for costs and disbursements. No taxation is deemed necessary, and no adjustment in other cases is provided for. It is supposed the amount due can be readily ascertained by the parties, by reference to the provisions of the code. The motion must be granted, but the practice having been somewhat unsettled, no costs of motion will be allowed. SUPREME COURT. HAMILTON LITTLEFIELD agt. HENRY G. MURIN. After the lapse of a reasonable time for the service of the copy of complaint, after demand pursuant to section 130, if not served, the defendant may move for judgment, dismissing the plaintiff's complaint. Analogous to the old practice for judgment of non pros. for nonservice of a bill of particulars. In such cases the complaint may also be dismissed under section 274 of the code, for the neglect of the plaintiff to proceed in the cause, pursuant to statute, against the defendant served with the summons. It seems, that twenty-four hours after such demand may generally be considered a reasonable time. Jefferson Special Term, December, 1849.-Motion by defendant for an order or judgment dismissing the plaintiff's complaint in the nature of a judgment of non pros. on account of the non-service of a copy of the complaint. The action was commenced by the service of summons, without the complaint, on the 18th of August last. On the 23d of August, the defendant, by his attorney, demanded a copy of the complaint, and a copy not having been served in pursuance of the demand, this motion is now made. C. D. WRIGHT, for defendant. D. H. MARSH, for plaintiff. ALLEN, Justice. By the present code, an action may be commenced by the service of a summons, without a copy of the complaint, and in that case, if the defendant, within ten days after the service of the summons, |