¶1At special term the plaintiffs had judgment for injunctive relief with $164.20 costs. The general term affirmed the judgment with $87.29 costs. On defendant’s appeal the court of appeals modified the judgment. The material parts of the remittitur are as follows, viz.:
¶2“Whereupon the said court of appeals, .... did order and adjudge that the judgment of the general term of the superior court of the city of New York appealed from in this action to this court be and the same is hereby modified as stated in the opinion, without costs. And it was also further ordered that the record aforesaid and the proceedings in this court be remitted to the said superior court, there to proceed upon according to law. Therefore it is considered that the said judgment be modified as stated in the opinion, without costs, as aforesaid.”
¶3On reading and filing the remittitur an order was made at special term making the judgment of the court of appeals the judgment of this court and modifying the original judgment accordingly without costs in the court of appeals. The modification related to the extent of the injunctive relief granted by the judgment.
¶4The defendant thereupon tendered to the plaintiffs the sum of $164.20, with interest, as and for the costs of the original judgment, but declined to pay the costs of the general term judgment, and the tender having been for that reason refused, the defendant moved for an order of satisfaction of both judgments upon the deposit by him with the clerk of this court of the sum of $164.20, with interest. His motion was denied at special term and the present appeal is from the order of such denial.
¶5The -defendant has a right to have his liability for *515costs beyond the amount tendered by him determined, and a motion is the proper remedy. Patten v. Stitt, 50 N. Y. 591.
¶6So it must be conceded that, inasmuch as the action is of an equitable character, the court of appeals had full power to dispose of "the entire action and to determine absolutely the question of costs. It therefore remains to be seen what the court of appeals actually determined.
¶7On the motion below the burden was on the appellant to establish the extent of such actual determination. By the tender of the costs inserted in the original judgment with interest, the appellant impliedly admitted that the court of appeals did not intend that there ■ should be no costs whatever. The actual intention on the part of the court of appeals he was bound to substantiate by proof. The evidence of such actual intention is to be bound in the remittitur and the opinion. They must be construed together because the remittitur refers to the opinion as the source from which the nature and the extent of the modification is to be gathered. But the printed papers on the present appeal do not contain the opinion, nor has the opinion been brought to our attention in some other way. For all that appears therefore the court of appeals may have intended to grant without costs in that court a modification which should not interfere with the costs imposed below.
¶8The question seems to be a close one, but under the imperfect disclosure of all the facts which bear upon it, and in view of the fact that the order now under review was made by the samé learned judge who directed the entry of the order upon the remittitur, I am not prepared to say that there is error in the order appealed from.
¶9The order should be affirmed with ten dollars cost and disbursements.
¶10Sedgwick, Ch. J., and O’Gorman, J., concurred.