Reiss v. Compton — 111 N.Y.S. 512

Majority

p. 512

REISS et al. v. COMPTON.

(Supreme Court, Appellate Term.

June 30, 1908.)

Headnote

Costs—Dismissal of Counterclaim—Retaxation.

Alter an award of judgment for plaintiff and the dismissal of a counterclaim interposed by defendant, the court has no authority to entertain a motion by plaintiff to retax the costs and to allow him extra costs on the dismissal" of the counterclaim.

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

Action by Christian F. W. Reiss and another against Robin Dale Compton. From a judgment for plaintiffs, defendant appeals.

Modified and affirmed.

Argued before GIDDERSDEEVE, P. J., and MacLEAN and SEA-BURY, JJ.

Gignoux & Reid, for appellant.

Grauer & Rathkopf, for respondents.

The court below awarded judgment for the plain tiffs for $39.67, and dismissed the defendant’s counterclaim for $100, after a trial of the action. The plaintiffs moved to retax the costs, so as to allow them $15 extra costs on the dismissal of the defendant’s counterclaim. This motion was granted. The defendant appeals from the judgment as modified by the order awarding extra costs. There is no authority for awarding the additional costs on the dismissal óf the counterclaim, under the circumstances of this case. Benning v. Pouker, 54 Misc. Rep. 211 , 104 N. Y. Supp. 409 .

The judgment is modified, by striking out $15 costs, and, as modified, affirmed, with costs to the appellant.