Benning v. Pouker — 104 N.Y.S. 409

Majority

p. 409

BENNING v. POUKER.

(Supreme Court, Appellate Term.

May 16, 1907.)

Headnote

Coubts—Municipal Coubts—Costs—Counterclaim.

Under Municipal Court Act. Laws 1902, p. 1587, c. 580, § 332, subd. 4, allowing costs to plaintiff when the sum claimed is under $50, and the defendant interposes a counterclaim of $50 or over, and plaintiff recovers judgment on defendant’s nonappearance, extra costs are not allowable where defendant appears on the trial and.his counterclaim is dismissed.

Appeal from Municipal Court, Borough of Manhattan, Second District.

Action by Jennie Benning against Hyman Pouker. Judgment for plaintiff, and defendant appeals.

Judgment modified, and, as modified, affirmed.

Argued before GILDERSLEEVE, P. J., and SEABURY and BRADY, JJ.

•M. S. Horton, for appellant.

John R. Heinzelman, for respondent.

Plaintiff sties to recover back $25 paid to the defendant, a lawyer, on an agreement to procure the discharge of a friend incarcerated in the city prison on a charge of burglary. The defendant sets up a counterclaim for $100. The evidence shows sufficiently that the defendant did not keep his contract and the plaintiff is entitled to recover back the amount paid. The record shows that judgment was awarded by the justice below on January 15, 1907, in favor of plaintiff, for $25 damages, and $4.41 costs, and $15 extra costs, .and dismissing the counterclaim. Appellant claims that judgment was originally entered.on January 15, 1907, without including the $15 extra costs, and that the clerk without notice included the amount in the judgment after that date, and the record contains mov

p. 410

ing papers on a motion made by the defendant to amend the judgment by striking 'out that item, and also an order of the justice below denying said motion.

It does not appear whether the motion was denied upon the ground that the statement of facts contained in the moving papers was hot sustained, or that the justice concluded that the taxation was proper. The appeal is taken, however, from the judgment, and brings up the question of the right of the plaintiff to the $15 extra costs on the dismissal of the defendant’s counterclaim. Section 33, subd. 4, of the Municipal Court act (Laws 1902, p. 1587, c. 580), allows costs to plaintiff where the sum claimed is. under $50, and the defendant interposes a counterclaim of $50 or over, and the plaintiff recovers judgment upon the nonappearance of the defendant. This provision does not authorize the plaintiff here to tax the $15 extra costs, because her recovery was not upon the nonappearance of defendant. It may be considered singular that extra costs are allowed to plaintiff on the nonappearance of defendant who has set up a counterclaim, and that no provision is made for such recovery where the defendant appears on the trial and his counterclaim is dismissed; but the omission of such provision, strange as it seems, exists.

The judgment should be reduced to the sum of $29.41, by striking out the item of $15 extra costs, and, as so modified, affirmed, without costs in this court. All concur.