Tabachnick v. Brand — 129 A.D. 620

Majority

p. 620

William Tabachnick, Appellant, v. Leopold Brand, Respondent.

Second Department,

December 30, 1908.

Headnote

Court — stare decisis — Municipal Court of New York— costs.

Where the evidence on a new trial is substantially the same as on the former trial, the Appellate Division will adhere to its prior decision.

By virtue of section 333 of the Municipal Court Act, a defendant who has not filed a verified pleading or a wn-itten notice of appearance is not entitled to tax costs on the dismissal of the complaint.

Appeal by the plaintiff, William Tabaohnick, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the defendant, rendered on the 1st day of April, 1908, dismissing the complaint upon the merits; also from an order opening a default which the plaintiff had taken against the defendant, and also from an order denying the plaintiff’s motion for a retaxation of costs.

Walter S. MacGregor, for the appellant.

Reich & Brand, for the respondent.

The evidence was substantially the same as that given upon the former trial of the action, and we must adhere to our decision ( 123 App. Div. 667 ) as to the interpretation of the written agreement. The discretion of the justice was properly exercised in opening the default, but a mistake was made in denying the motion for a retaxation of costs. There is no authority in the taxing officer to allow costs to the defendant, except where the party has appeared by an attorney at law, who filed a verified pleading or a -written notice of appearance (Mun. Ct. Act [Laws of 1902, chap. 580], § 332), and as the defendant did not file a verified pleading and neglected to file a written notice of appearance, it follows that the costs were improperly taxed and plaintiff’s motion should have been granted.

The judgment of the Municipal Court and order opening the default are affirmed, without costs. The order denying plaintiff’s

p. 621

motion for a retaxation is reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.

Woodward, Jenks, Gaynor and Miller, JJ., concurred.

Judgment of the Municipal Court and order opening default affirmed, without costs. Order denying plaintiff’s motion for retaxation reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.