Majority
p. 579Isabel N. Holloway, Respondent, v. Max Frensdorf, Appellant. Second Department, June 21, 1918.
Headnote
Costs •— power of court to allow trial fee where first cause of action is dismissed and plaintiff allowed to amend — appeal — acquiescence in dismissal by motion to amend.Where on the opening of a trial a motion to dismiss a first cause of action was granted, but the plaintiff was allowed to withdraw a juror with permission to serve an amended complaint, the court had discretionary power to allow a trial fee, as the plaintiff Was relieved from dismissal as a favor. The correctness of the dismissal of the plaintiff’s case is not up for review where she acquiesced in the decision by motion for leave to serve an amended pleading.
Appeal by the defendant, Max Frensdorf, from part of an order of the County Court of Westchester county, entered in the office of the clerk of said county on the 26th day of April, 1918.
Sidney J. Loeb, for the appellant.
Floyd M. Grant, for the respondent.
It appears that the learned County Court at Special Term did not exercise discretion in its refusal to allow the item of a trial fee to the defendant upon plaintiff’s application to serve an amended complaint, inasmuch as the order expressly states that such item “ is not allowed to the defendant on the ground that there has been no trial of this action.” The affidavit in support of the application shows that when the
p. 580
case came on for trial, a motion to dismiss the first cause of action was granted, and thereupon leave was granted to the plaintiff to withdraw a juror that she might move to serve an amended complaint. Thus the plaintiff, upon her application, was relieved from dismissal as a favor. The Special Term could have allowed the trial fee. (Browning v. Goldman, 35 Misc. Rep. 272 ; Dewey v. Stewart, 6 How. Pr. 465 ; Mott v. Consumers’ Ice Co., 8 Daly, 244 ; Starr Cash Car Co. v. Reinhardt, 6 Misc. Rep. 365 .) The correctness of the dismissal of the plaintiff at Trial Term is not up for review. So far as this appeal is concerned, the plaintiff avowedly acquiesced in the decision, by motion for leave to serve the amended pleading.
The order of the County Court of Westchester county is reversed, with ten dollars costs and disbursements, and the matter is remitted to the Special Term of that court for reconsideration on the merits with respect to the said item.
Mills, Blackmar, Kelly and Jaycox, JJ., concurred.
Cases cited
- Browning v. Goldman 35 Misc. Rep. 272 p. 580
- Dewey v. Stewart & Blakeney 6 How. Pr. 465 p. 580
- Starr Cash-Car Co. v. Reinhardt 6 Misc. Rep. 365 p. 580