Majority
p. 85Solomon H. Miller, Plaintiff, v. Max Koven, Defendant. Supreme Court, New York County, March 3, 1926.
Headnote
Costs — action of replevin in Supreme Court — judgment for property or $100 — plaintiff is subject to limitation in Civil Practice Act, § 1474, imposed for bringing action unnecessarily in higher court.A plaintiff who recovers in an action of replevin the property or the sum of $100 is subject to the limitation imposed by section 1474 of the Civil Practice Act as to the amount of costs, which section limits the costs where the action is unnecessarily brought in a higher court.
Motion by plaintiff in replevin action for retaxation of costs.
Joseph Sapinsky [Edwin J. Lukas of counsel], for the plaintiff.
Kantrowitz, Esberg & Solins [Benjamin Esberg of counsel], for the defendant.
The successful plaintiff in a replevin action who recovered chattels, or the sum of $100, their value, moves for retaxation of costs on the clerk’s refusal to allow him a bill of costs. He claims that section 1473 of the Civil Practice Act is the only limitation on his right to costs, namely, that if the fixed value of the chattels is less than $50 his costs cannot exceed the amount of the value and the damage. An analysis of sections 1470 to 1474 of the Civil Practice Act, however, shows that certain limitations are contained in sections 1471 to 1473, inclusive. Section
p. 86
1474 specifies certain limitations arising out of the fact that the plaintiff unnecessarily sued in a higher court. It has been held that the limitations of section 1474 are over and above and in addition to those of section 1472. (Parker v. City of New York, 122 Misc. 660 .) This also seems to be the logical effect of a dictum in Herman v. Girvin ( 8 App. Div. 418 , 421). The policy of the law should be to discourage the bringing of actions in the Supreme Court which could be brought in other tribunals.
Motion denied. Order signed.
Cases cited
- Parker v. City of New York 122 Misc. 660 p. 86
- Herman v. Girvin 8 App. Div. 418 at 421 p. 86