Averbuck v. Hochlick — 63 Misc. 327

Majority

p. 327

Harris Averbuck, Appellant, v. “ Benjamin ” Hochlick, Respondent.

(Two actions.)

(Supreme Court, Appellate Term,

May, 1909.)

Headnote

Municipal courts: Procedure — Costs — On dismissal for failure to serve process: Review — Judgments and orders reviewable — Order denying motion for retaxation, of costs.

Where, upon the return day of a summons in two actions in the Municipal Court of the city of New York, the defendant appeared specially and stated that he had not been served with the summons, and upon the adjourned day again appeared, when the trial justice took proof upon the question of service and, after deciding that defendant had never been served with the summons in either notion, gave judgment in his favor and against the plaintiff for costs, the judgment should h° reversed.

An order denying a motion for a retaxation of costs is not appealable but reviewable only on appeal from the judgment, and an appeal therefrom should be dismissed.

Appeal by the plaintiff from two judgments and orders of the Municipal Court of the city of New York, eighth district, borough of Manhattan.

Edgar A. Meyer, for appellant.

Michael Kaufman, for respondent.

Plaintiff brought two actions against a person named in the summons as “Benjamin” Hochlick, the name “ Benjamin ” being declared to be fictitious. Hpon the return day of the summons, the defendant appeared specially and averred that no service of the summons had ever been made upon him, and the ease was adjourned, ' Upon the

p. 328

adjourned day, th© defendant again appeared and the trial justice took proof upon the question of service and, upon the testimony offered, decided that the defendant had never been served with a summons in either action. He thereupon gave a judgment in favor of the defendant against the plaintiff for costs. Thereafter the plaintiff moved for a retaxation of such costs, evidently claiming that, under such circumstances, no costs could be imposed, which motion was denied. Plaintiff then appealed from the judgments and also from the orders denying his motion for retaxation of costs. The orders as such are not appealable, not being one of the orders from which an appeal is provided for by the Municipal Court Act. The right to review a taxation of costs can only be obtained by an appeal from the judgment, after a motion for retaxation has been denied. Mun. Ot. Act, § 342.

The appeals from the orders must, therefore, be dismissed.

The power to give costs is created solely by statute, and a party cannot obtain them unless he shows a statutory provision which grants them. “ In the absence of a statute providing for costs, none can be received.” Matter of the City of Brooklyn, 148 N. Y. 107 . Our attention has not been called to any section of the Municipal Court Act that authorizes the imposition of costs upon a plaintiff in a case of this kind. Section 332, subdivisions 1, 5, 6, 7 and 8, provides for the allowance of costs to a defendant under the circumstances therein described, but none of those sections is applicable to the facts in this case.

It follows, therefore, that the court below had no authority to impose costs upon the plaintiff herein in favor of the defendant, and the judgments must, therefore, be reversed.

Judgments reversed, with costs in each case, and appeals from orders dismissed, with ten dollars costs in each case. Costs of one party to be offset against those of the other.

Present: Dayton, Seabury and Lehman, JJ.

Judgments reversed, with costs in each case. Appeals from orders dismissed, with ten dollars costs in each case. Costs of one party to be offset against those of the other.

Cases cited

In re City of Brooklyn 148 N. Y. 107 N.Y. 1895-12-19 p. 328