The Canadian Northern Railway Co. and the Canadian National Railways Co. (Defendants) Appellants;
and
His Majesty the King and the Provincial Treasurer of Alberta (Plaintiffs) Respondents.
1922; May 12, 15; 1922: June 17.
Present: Idington, Duff, Anglin, Brodeur and Mignault, JJ.
ON APPEAL FROM THE APPELLATE DIVISION OF THE SUPREME COURT OF ALBERTA
Statutes—Construction—Meaning of "any statute" in provincial Act— Penalties—Statutes of limitations—Statutory penalties—Power in court to relieve—"Act to supplement the Revenues of the Crown" Alta. s. [1906] c. 30—31 Eliz. c. 5, s. 5—3 & 4 Wm. IV, c. 42, s. 3.
[Page 264]
Under the provisions of "An Act to supplement the revenues of the crown", the province of Alberta claimed from the railway companies double taxes for 1913 to 1918, both inclusive and also penalties for 2,191 days at $20 a day for failure to deliver to the provincial treasurer in each year a written statement showing the number of miles of railway, whether exempt from taxation or not (Alta. S. [1906] c. 30, s. 4).
Held, that under the provisions of the Statutes of Limitations (31 Eliz. c. 5, s. 5 and 3 & 4 Wm. IV, c. 42, s. 3), the respondent's right to recover is restricted to such penalties as accrued within two years previous to the commencement of its action.
Held, also, Idington and Anglin JJ. dissenting, that the words "any statute" in the proviso (added by s. 10 of c. 5 of Alta. s. [1909]) to section 12 of the Revenue Act above cited "that no tax shall be payable under this Act upon or with respect to any portion of a line of railway aided by a guarantee of bonds * * * under the provisions of any statute * * * "are not restricted to a statute of the Province of Alberta but also comprise a statute of the Parliament of Canada.
[Page 265]
Per Idington, Duff and Anglin JJ.—The power given to the court to relieve against penalties ("Supreme Court Act", Alta. s. [1907]) c. 3, as amended by Alta. s. [1907] c. 5) does not authorize it to relieve against statutory penalties.
Judgment of the Appellate Division ([1921]) 1 W.W.R. 1178) varied, Idington and Anglin JJ. dissenting in part.
APPEAL from the judgment of the Appellate Division of the Supreme Court of Alberta, reversing the judgment of Hyndman J at the trial and maintaining the respondents' action to recover taxes and penalties alleged to be due and owing in respect of 176.23 miles of railway owned by appellant companies.
The material facts of the case and the questions in issue are fully stated in the above head-note and in the judgments now reported.
Maclean K.C. for the appellants: "Any statute" includes Dominion statutes.
The Statutes of Limitations must be applied to the respondents' claim for double taxes and penalties.
The Supreme Court of Alberta, under the provisions of the Supreme Court Act, had power to relieve against the penalties and forfeitures sued for in this action.
Lafleur K.C. for the respondents.
IDINGTON J. (dissenting in part)—The respondent sued the appellant for taxes due under the provisions of an "Act to supplement the Revenues of the Crown in the Province of Alberta," being chapter 30 of the Statutes of 1906 of said province, and for penalties thereby provided for.
[Page 266]
The learned trial judge having dismissed the action, the Appellate Division reversed that and allowed everything claimed; hence this appeal here.
I agree with the view taken by the Appellate Division that if the order in council upon which respondents rely for the determination of the value of the railway is to be held ineffective, then the $20,000 a mile provision set forth in the statement of claim would become operative and that the lesser sum claimed herein would still be recoverable herein.
The mileage seems to have been admitted in the course of the trial and that seems to answer the objection taken on that score.
A much more difficult question is raised by the use of the words "any statute" in the following amendment passed in 1909, c. 5, sec. 10:—
Provided, however, that no tax shall be payable under this Act upon or with respect to any portion of a line of railway aided by a guarantee of bonds, debentures, debenture stock, or other securities under the provisions of any Statute for a period of fifteen years from the date of the commencement of the operation of the portion of the line so aided, and thereafter during the currency of the guarantee as aforesaid the amount of taxes payable hereunder upon or with respect to such portion of any line of railway so aided shall not exceed an amount equal to $30 per mile of the mileage of such portion of such line in the Province.
It seems that in respect of a small part of the line of railway in question herein the appellant or those through whom it claims got such aid as specified from the Dominion government by virtue of a statute of Parliament and thus it is contended the exemptions provided for were made operative in relation to said part of the line.
The Appellate Division divided on this question. I agree with the majority of said court in holding that the word "statute" in the said provision covers only the case of a statute of Alberta.
[Page 267]
To avoid the absurdity of giving with one hand and taking away with the other, might seem a very good reason for the legislature of Alberta, if passing such a statute, exempting the object of such a bounty from taxation.
I do not see any good reason for the legislature concerning itself in that regard about what other legislative bodies might or might not have done in that regard.
And the amendment made later to give effect to that view indicates that the legislature had so intended to restrict the operation of the exemption.
The action seeks to recover for penalties imposed by the following, which is section 5 of the said Act of 1906:—
5. Every person, company or corporation who, or which, and the manager or agent in the province of any company or corporation as aforesaid who neglects to conform to the provisions of the preceding section shall each be liable to a penalty of twenty dollars per day for each day during which default is made; and the person, company or corporation aforesaid shall also be liable to pay a tax of double the amount for which he or it would have been liable under this Act, and any penalty or such double tax may be recovered with costs in any court of competent jurisdiction in an action brought in the name of the provincial treasurer.
The preceding section therein referred to required a return to be made by parties defined, of whom appellant answers the description, on or before the first of July in each year, beginning with July, 1906, shewing the number of miles of railway line, or part thereof, which such like parties as appellant were operating, and whether claimed to be exempt, etc.
The appellant never made any such return and became liable to said penalties.
It however got leave from the learned trial judge to amend its pleadings, setting up the defences in paragraphs 7, 8, 9 and 10 of its amended statement of claim.
[Page 268]
It pleads therein the statutes of 18 Elizabeth, c. 5; 31 Elizabeth, c. 5, section 5, and 3 & 4 Wm. IV. c. 42, section 3.
The Appellate Division seems to have overlooked this though counsel, as I understand, say the matter was mentioned in argument there.
Indeed one of the grounds taken in the notice of appeal from the learned trial judge is that he had given leave to so plead, as appellant did by said amendments.
I find in Darby & Bosanquet, 2nd ed., a reference to the statute of Elizabeth, stating it is in force but intimating that it was held in Noy's Reports, 71, that it did not apply to an action brought by the party aggrieved, and that, in such case, is now provided for by the 3rd section of 3 & 4 Wm. IV, cap. 42. In looking at said case in Noy's Reports, page 71, the matter is cleared up as the statute of Elizabeth relied on was held only applicable to a common informer, which respondent will hardly assent to be called but rather as a party aggrieved.
Hence I take it that the latter statute is that which must govern herein.
Therefore I hold the action for penalties herein, which I hold the double tax to be, as well as the per diem penalty of $20.00 a day, is barred beyond the two years preceding the 10th of October, 1919, when the action was brought.
The time began to run on the 1st July, 1917, as to the per diem penalty, and can only be computed as to that year for the last six months of the year 1917, and the like period between the 1st of July, 1918, and the end of that year. And as to the double tax it can only apply to the years 1917 and 1918.
The amount of the judgment in the Appellate Division should be reduced accordingly.
[Page 269]
The appeal, I think should be allowed to that extent with costs of this appeal and in the Appellate Division and no costs of the trial.
I do not see how the other defence set up in the other amended defences can avail appellant anything.
I am by no means clear as to what the treasurer rests his right upon to recover the penalties, though it may be implied from the provisions of the Act.
The contention founded upon the power of the court to relieve from such penalties as mentioned in the Amending Act of 1907, c. 5, seems to me to be applicable only to such contractual penalties and forfeitures as the Court of Chancery had exercised jurisdiction in regard to.
DUFF J.—The chief question arises under the proviso to sec. 12; and the point in dispute is whether the lines of railway in respect of which the taxes sued for are said to have accrued or any part of them fall within the description
line of railway aided by a guarantee of bonds, debentures, debenture stock or other securities under the provisions of any statute.
I am not in agreement with the view which prevailed with the majority of the Appellate Division touching the effect in this proviso of the words under the provisions "of any statute".
It is serviceable sometimes to repeat the exact words of Lord Wensleydale's canon enunciated in Grey v. Pearson, and described as the golden rule of reading Acts of Parliament by Jarvis C. J. in Mattison v. Hart. These are Lord Wensleydale's words:—
[Page 270]
In construing wills, and, indeed, statutes and all written instruments, the grammatical and ordinary sense of the words is to be adhered to, unless that would lead to absurdity or some repugnance or inconsistency with the rest of the instrument; in which case the grammatical and ordinary sense of the words may be modified so as to avoid that absurdity, repugnancy, or inconsistency, but no further.
Now what is the ordinary meaning of the words in dispute? I do not in the least doubt that, for the purpose of determining that, you must consider that it is a statute of the legislature of Alberta which is speaking; but you may and must also consider what it is that the statute is dealing with. The subject is the taxation of railways and the clause to be construed is a clause exempting certain railways from its operation. Generally, both as to railways wthin the incidence of the tax and those excepted from its operation. it deals with railways constructed or in operation under the authority of statute, that is to say under the authority of an Act of the Parliament of Canada or of an Act of the Legislature of Alberta.
I can see little reason to doubt that the ordinary meaning of the words quoted when employed in a statute dealing with railways of these two classes (railways in operation under the authority of the Parliament of Canada and railways in operation under the authority of the local legislature) includes statutes of the Parliament of Canada as well as those of the Alberta Legislature. There might of course be something in the context excluding that meaning; to attribute such meaning to the words might give rise to some repugnancy to the declared or apparent object of the statute and if so, then the literal meaning would give way to an interpretation more in harmony with the ascertained purpose of the legislature.
[Page 271]
In Vacher v. London Society of Compositors, Lord Macnaghten said:
In the absence of a preamble there can, I think, be only two cases in which it is permissible to depart from the ordinary and natural sense of the words of an enactment. It must be shewn either that the words taken in their natural sense lead to some absurdity or that there is some other clause in the body of the Act inconsistent with or repugnant to, the enactment in question construed in the ordinary sense of the language in which it is expressed.
Now there is nothing absurd in the notion that the legislature should grant exemption from taxation in respect of railways, construction or maintenance of which has been aided by a guarantee of bonds given under the authority of the Dominion Parliament. There is nothing absurd in such a notion being a motive of legislation by the Alberta legislature. On the contrary, joint action or combined action by the Dominion and a province in lending financial aid to railway enterprises in different forms has been a not uncommon type of legislative activity in the past history of this country. It can, I think, offer no sort of clue to the intention of the legislature as expressed in this enactment to contrast the financial advantages in a strictly provincial point of view of subsidizing by way of tax exemption a railway company whose obligations the province has guaranteed on the one hand with the advantages to be derived from lending assistance to a company supported by the Dominion Parliament alone. Such speculations as to the relative weight of possible motives which may be conceived as prompting such legislative action would carry us far beyond the strict limits of the judicial function and would expose us to the risk, as Lord Haldane said in the same case on p. 113, of "going astray in a labyrinth" where one has "no sufficient guide".
[Page 272]
These considerations have no application with regard to any taxes accruing after the 13th April, 1918, that is to say to taxes claimed for any year subsequent to 1917. The respondent was therefore not entitled to recover in respect of any part of the railway in question aided by a guarantee of securities under the provisions of any Dominion or Provincial statute. This condition appears to be fulfilled only in the case of the line from Lloydminster to Edmonton. As regards the other points made, the invalidity of the order in council is I think, of no importance. The respondent relies upon it, it is true, but the only possible effect of that is to limit the respondent's claim for assuming the order in council to be invalid the respondent would be entitled to recover upon the basis of a valuation of $20,000 a mile. As to the statutes of limitation, I think the appellants have made good their contention. The combined effect of 31 El. cap. 5 and 3 & 4 Wm. IV, cap. 42 is, I think, to impose a limitation of two years and this applies, I think, to the claim for double taxation as well as to the sums claimed nominatim as penalties.
I am unable to accept the contention that the authority to relieve from forfeitures expressed in general terms and conferred upon the Supreme Court by the statute of 1907 extends to penalties and forfeitures declared by a public enactment and thereby made exigible upon the non-performance of a general duty created by such enactment, such as a duty to pay taxes or to make a return under a taxing statute.
In the result the appeal should be allowed in part and the judgment below varied. The respondent is entitled to recover taxes for the year 1918 on the footing of the valuation of the order in council of the 29th August, 1908 at the rate of 2 % of the value as
[Page 273]
fixed by such valuation of the railway in question and for the year 1919 at the rate of 1%. For the years preceding 1918 the respondent is entitled to recover taxes at the rate of 1% on the same valuation in respect of the line between Edmonton and Strathcona and is also entitled to recover a penalty of $20.00 a day for each day of the period from the 30th day of August, 1917 to the 31st day of December, 1918. The appellants are entitled to the costs of the appeal to this court. The respondents should have the costs of the action and of the appeal to the Appellate Division.
ANGLIN J. (dissenting in part)—On the points which it covers the judgment delivered by the learned Chief Justice of Alberta is, to me, entirely satisfactory and I feel that I cannot usefully add to it.
The only point not covered is the application and effect of the statute 31 Eliz. c. 5 s. 5 invoked by the appellant. Its applicability seems to be established. The right of the plaintiff to recover is thereby restricted to such penalties as accrued within two years previous to the commencement of the action in August, 1919.
By section 5 of the Alberta statute of 1906 (c. 30), the appellant is made liable for a penalty of $20.00 a day for each day during which default is made in delivery of the return prescribed by section 4, and also to pay double the amount of the tax for which it was liable. The appellant urges that it has been ordered by the Appellate Division to pay for penalties $20.00 per day for six years, from 1913 to 1918, inclusive—2,991 days in all. This is in accordance with the prayer in the statement or claim. These penalties appear to have been awarded solely in respect of default in making the return for the year
[Page 274]
1913. Recovery of penalties for defaults in regard to the returns for the years 1914, 1915, 1916, 1917, was not prayed for. In a penal action such as this, I would not be disposed to allow the plaintiff to alter or enlarge the claim by amendment.
I am, however, unable to assent to the suggestion that default in respect of the return for each year ceased when delivery of that for the succeeding year became due.
In the result the recovery of penalties claimed should be restricted to such per diem penalties as accrued in respect to the 1913 tax from the 30th of August, 1917. The double tax is recoverable only in respect of the 1918 taxes.
The judgment should be modified accordingly and the appellant should have its costs in this court.
BRODEUR J.—By an Act passed in 1906, the legislature of Alberta declared that any railway company not exempt from taxation was bound to pay a tax to the provincial government; that the executive authorities could determine the actual value of the railway; and if they failed to do it, then the actual value should be taken to be $20,000.00 for each mile.
On the 29th of August, 1908, the Lieutenant Governor in Council fixed the value of all the railway lines at a sum of $11,985.34 per lineal mile.
The Canadian Northern Railway was then operating 176.23 miles of railway in Alberta and became liable to taxation. But a statute was passed in the same year 1908 declaring that
no tax shall be payable under this Act upon or with respect to any portion of a line of railway aided by a guarantee of bonds, debentures, debenture stock or other securities under the provision of any statute.
[Page 275]
The evidence shows that the Dominion Parliament had guaranteed the debentures of the Canadian Northern in 1903 to the extent of 169 miles of its railway from Lloydminster to Edmonton and that a subsidy in money had been granted by the federal authorities for the other 7.23 miles from Edmonton to Strathcona operated by the Canadian Northern. It is claimed by the appellants that this aid by the federal authorities would constitute the Alberta lines of the Canadian Northern exempt from taxation.
On the other hand, the respondent, the provincial treasurer, contends that the exemption would cover only railways aided by a provincial statute, and that as far as the 7.23 miles between Edmonton and Strathcona the exemption could not be claimed because there was only a cash subsidy for them and not a guarantee of bonds.
The main question which we have to decide is whether the words "any statute" in the Act of 1908 above quoted refer to provincial laws only or to both Dominion and provincial laws.
A law imposing taxation should always be construed strictly against the taxing authorities, since it restricts the public in the enjoyment of its property. These taxing laws are not to be extended beyond the clear import of the language used and the powers granted to the officers charged with their execution must be strictly pursued. Tennant v. Smith; Clerical Assurance Soc. v. Carter.
At the time this railway taxation act was passed, there were no railways subsidized or aided by the province and the statute must have had in contemplation the exemption of railways aided by the federal authorities.
[Page 276]
The words "any statute" in the Alberta Act of 1908 should then include all the statutes in force, viz, the Dominion as well as the provincial statutes.
This interpretation which I give to the statute of 1908 appears to me so well founded that in 1918, on the 13th of April, the Legislature of Alberta amended this provision in such a way that the statute referred therein was a provincial statute.
It is contended that the amendment has a retroactive effect, but the declaration is not made in terms sufficiently wide to be construed retroactively. If there were some doubt, the doubt should be solved against the retrospective effect; and besides, in this case, it would disturb vested rights.
I then come to the conclusion that the Canadian Northern was exempt from municipal taxation on the 169 miles of railway extending from Lloydminster to Edmonton until the statute of 13th of April, 1918 was passed. As to the 7.23 miles between Edmonton and Strathcona, the company should be held liable because it received only a cash subsidy and did not obtain from the federal authorities a guarantee of bond.
The plaintiff in his claim also asked that the defendant company be condemned to pay penalties imposed by the law. The law provided that any railway company would be bound to deliver to the provincial treasurer each year a written statement correctly showing the number of miles of railway, whether the same is exempt from taxation or not, and that any company which failed to file a statement should be liable to a penalty of $20.00 per day for each day during which default is made and to double taxation.
[Page 277]
The railway company invokes against this penal claim the statutes of 31 Elizabeth, c. 5, s. 5, and 3 & 4 William IV, c. 42, s. 3, which declare that all actions for forfeiture upon a penal statute should be brought within two years after the offence has been committed, whether the action is brought by the party aggrieved or by a common informer.
These statutes are such that they leave no doubt that the claims for penalties should be restricted to two years. The action having been instituted on the 30th day of August, 1919, the penalty of $20.00 a day should cover the period from the 30th of August, 1917. As the double taxation is in the nature of a penalty, it should also be restricted to two years on the 7.23 miles of railway from Edmonton to Strathcona. Since the exemption from taxation on the 169 miles has ceased since the law of the 13th of April, 1918, the company should be condemned to pay double taxation for part of the year 1918 on these 169 miles.
The plaintiff has amended his original statement of claim to cover the taxation for the year 1919 but he has made no claim for penalties for the other period. The plaintiff is entitled to recover the full taxes on the basis of 1% for this year 1919.
The appeal should be allowed in part and the judgment below varied in the manner I have indicated. The appellants are entitled to the costs of the appeal to this court. The respondents should have the costs of the action and of the appeal to the Appellate Division.
MIGNAULT J.—Two questions raised under this appeal have received my serious consideration.
1. Were the appellants exempt from the tax claimed from them?
[Page 278]
2. Are they liable for the penalties demanded for failure to deliver to the provincial treasurer a statement showing their mileage?
On the first question as to the construction of the words "any statute" in section 10 of chapter 5 of the Alberta statutes of 1909, which exempts certain lines of railway from the tax, I share the opinion of the learned trial judge and of Mr. Justice Beck in the appellate divisional court that these words should not be restricted to a statute passed by the legislature of the province of Alberta but comprise also a statute of the Parliament of Canada which of course would be in force in Alberta as well as in any other province of the Dominion. No more comprehensive term could be used than "any statute" and I feel that I should give it its ordinary and grammatical meaning.
In 1918, the legislature of Alberta amended the "Interpretation Act" by ch. 4, sect. 48, assented to on April 13th, by inserting immediately before clause 11 of section 7 thereof the following new clause: —
10a. The expression "province" means the province of Alberta, and the expressions "Act" and "statute" mean an Act or statute of the province.
For the reasons fully stated by the learned trial judge, I am of opinion that this amendment is not retrospective and that it applies only in the future. Therefore if the appellants were, before April 13th, 1918, aided in respect of their line of railway by a guarantee of bonds, debentures, debenture stock or other securities under the provisions of a statute of the Dominion of Canada, no tax was payable by them under the Act in question for a period of fifteen years from the date of the commencement of the operation of the portion of the line so aided, and thereafter during the currency of the guarantee
[Page 279]
as aforesaid the amount of taxes payable upon or with respect to such portion of the line of railway so aided, could not exceed an amount equal to $30.00 per mile of the mileage of such portion of such line in the province.
I take it as established that the portion of the line of railway between Lloydminster and Edmonton was aided by a guarantee of bonds by the Dominion of Canada under a Dominion statute. The order-in-council authorizing the guarantee is dated the 20th July, 1903, so that the fifteen years period would extend to July, 1918. The portion of the line known as the Edmonton, Yukon and Pacific Railway (from Edmonton to Strathcona, 7.23 miles) was aided merely by a cash subsidy, and this portion would not come within the operation of the exemption clause.
The tax in question was payable on September 1st in each year (sect. 9). Applying the 1918 amendment from the date of its enactment as excluding any statute granting a guarantee of bonds, etc, other than an Alberta statute, the 1918 taxes, for the aided portion of the line, could only be claimed for the broken period from April 13th to December 31st, and the taxes for 1919 in entirety. The taxes demanded in this action for 1913, 1914, 1915, 1916, 1917, and the broken period of 1918 from January 1st to April 13th are not due in respect of the portion of the appellant's line from Lloydminster to Edmonton.
The second question is whether the appellants are liable for the penalties demanded by this action for failure to deliver to the provincial treasurer the statement required by section 4 of the Act (chapter 30 of the statutes for 1906)?
[Page 280]
This statement is required whether or not the line of railway is claimed to be exempt from taxation, and it is admitted that during these years no such statement was delivered to the provincial treasurer.
The respondent claims a penalty for the years 1915 to 1918 both inclusive, to wit 2,191 days at $20.00 which is the statutory penalty, and further a double tax, also a penalty, which is claimed for 1913, 1914, 1915, 1916, 1917 and 1918. By an amendment, the respondent demanded $21,121.76 for taxes for 1919, but no double tax as a penalty.
Therefore the demand is for the following amounts:—
| Taxes for 1913 to 1919, both inclusive…………………….….…….. |
$147,852 32 |
| Double taxes for 1913 to 1918, both inclusive…………….……….. |
126,730 56 |
| Penalty for 2,191 days at $20…………………………….………….. |
43,820 00 |
| |
$318,402 88 |
And the respondent prays for interest at 7% on the aforesaid sums from the dates on which they respectively fell due.
As to the claim for the $20.00 penalty, it is made for a single penalty of $20.00 per day for the 2,191 days. No penalty running concurrently with other like penalties for each separate default is demanded, and this being a penal action, I would strictly restrict the respondent to the demand made by its particulars and by the prayer of the statement of claim.
The double tax, I have said, is also a penalty and must be treated as such.
The appellant pleaded by an amendment the statute 31 Elizabeth ch. V., restricting a demand of penalties to two years from the date of the action, which is August 30th, 1919. I am of opinion that this
[Page 281]
point is well taken and consequently the penalty of $20.00 per day cannot be claimed for the period preceding the 30th August, 1917. This, I take, would reduce the number of days for which the penalty can be claimed to 488, from August 31st, 1917 to December 31st, 1918, which, at $20.00 per day, would amount to $9,760, instead of $43,820.00, a difference in favour of the appellants of $33,860.00.
This statute of limitation applies to the double tax, also a penalty, so that this double tax can only be claimed for 488 days, that is to say for one year, four months and one day. I have not calculated the amount, but it can easily be determined.
I am therefore of opinion that the taxes due the respondent are those which accrued from April 13th 1918 to December 31st, 1919, on the appellants' line of railway from Lloydminster to Edmonton, and on the other portion of the line which does not coma within the exemption clause, the taxes due are those which accrued from 1913 to 1919, both inclusive; that double taxes can only be demanded in this action from August 30th, 1917 to December, 31st, 1918; and that the penalty of $20.00 per day for the failure to deliver the statement required by section 4 can only be demanded from August 30th, 1917 to December 31st, 1918.
The appeal should be allowed in part and the judgment below varied. The respondent is entitled to recover taxes for the year 1918 on the footing of the valuation of the order in council of the 29th August, 1908 at the rate of 2% (this 2% comprising the double tax demanded as a penalty) of the value as fixed by such valuation of the railway in question and for the year 1919 at the rate of 1%. For the years preceding 1918, the respondent is entitled to recover taxes at
[Page 282]
the rate of 1% on the same valuation in respect of the line between Edmonton and Strathcona (7.23 miles) and is also entitled to recover a penalty of $20.00 a day for each day of the period from the 30th day of August, 1917 to the 31st day of December, 1918. The appellants are entitled to the costs of the appeal to this court. The respondents should have the costs of the action and of the appeal to the Appellate Division.
Appeal allowed in part with costs.
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