Tobias v. Metal Stamping Co. — 107 N.Y.S. 39

Majority

p. 39

(56 Misc. Rep. 457.)

TOBIAS V. METAL STAMPING CO.

(Supreme Court, Appellate Term.

November 29, 1907.)

Headnote

Courts—Municipal Courts of New York City—Costs—Taxation—Appeal.

An appeal cannot be taken from an order reviewing the taxation of costs under a judgment in the Municipal Court of the city of New York, but it must be taken from the judgment

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

Action by William A. Tobias against the Metal Stamping Company. From an order reviewing taxation of costs, plaintiff appeals. Appeal dismissed.

Argued before GILDERSLEEVE, P. J., and LEVENTRITT and ERLANGER, JJ.

James E. Smith, for appellant.

Lachman & Goldsmith, for respondent.

The notice of appeal purports to be from “an order * * * amending and modifying a judgment * * * wherein the amount of said judgment was reduced $10.” The record shows, however, that a motion was made by the defendant upon an order to show cause “why the taxation of costs should not be reviewed and the defendant allowed to tax his costs in the sum of $10, and why said costs should not be deducted from the amount of the judgment awarded the plaintiff.” This motion was granted, and an order entered “that the taxation of costs herein be and the same is hereby reviewed, and,the defendant hereby is allowed the sum of $10 costs, and that said $10 costs be deducted from the amount of the judgment heretofore awarded plaintiff, and that the judgment entered herein June 25, 1907, be modified by deducting therefrom said sum of $10.” This motion was,made and the order granted under the

p. 40

provisions of section 343 of the Municipal Court act (Laws 1903, p. 1589, c. 580), and is not an appealable order. The appeal should have been taken from the judgment. Bevins & Rogers, App. Term Practice, 63; Spiegelman v. Union Ry. Co., 95 App. Div. 92 , 88 N. Y. Supp. 478 .

Appeal dismissed, with $10 costs. All concur.