The opinion
By the Court. Bosworth, J.
They cannot be allowed. *643 .There has been no appeal, nor any judgment of the court from which an appeal could be taken, except that rendered by the general term.
At the trial, no decision was made upon any question of law. A verdict was ordered in favor of the plaintiff, if certain facts in issue were found, to exist; but it was ordered to be given and was rendered subject to such judgment as the court at general term might give upon the questions of law.
These questions of law were first tried at and determined by the general term. The court at general term did not review the judgment of the judge at special term upon these questions, but they were there first decided.
The prevailing party can only be allowed, under § 307, sub. 3, p. 15, for the trial of the issues of law, besides such costs as he may be entitled to under sub. 7, and disbursements under § 311, únless the case be one which entitles the plaintiff to a per centage, as to which no opinion is expressed.