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Feldmark v. Weissman

113 N.Y.S. 761 Court N.Y. App. Term Decision date 1908-12-24 English

Delivered by FORD, J.

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p. 761
FELDMARK v. WEISSMAN et al.
(Supreme Court, Appellate Term.
December 24, 1908.)

Headnote

Costs (§ 48[1] )—Statutory Costs—Dismissal of Summons.
Where a Municipal Court summons was dismissed, because made returnable at an improper date, defendant was not entitled to costs on such dismissal ; there being no provision in the Municipal Court act allowing costs under such circumstances.
[Ed. Note.—For other cases, see Costs, Dec. Dig. § 48.*]
p. 762
Appeal from Municipal Court, Borough of Manhattan, Second District.
Action by Sender Feldmark against Thomas W. Weissman and another. From a Municipal Court judgment dismissing the summons, and from an order denying a motion to amend the same, plaintiff appeals.
Modified and affirmed.
Argued before GIEGERICH, HENDRICK, and FORD, JJ.
Adolph Cohen, for appellant.
Abr. A. Joseph, for respondents.

This is an appeal from so much of a judgment of dismissal against plaintiff as awards costs to the defendant, and from an order denying plaintiff’s motion to modify the judgment by striking from it the provision awarding costs.

The summons as served was made returnable at a date more remote from the date of service than is provided by statute. The defendant appeared specially and procured the dismissal of the action. Judgment was thereupon entered for $15 costs against the plaintiff, who contends that this judgment was unwarranted by law. I agree with him, upon the ground that the Municipal Court act makes no provision for costs under such Circumstances.

The judgment should be modified, by striking out the provision for costs, and, as so modified, affirmed, with $10 costs and disbursements to the appellant. The appeal from the order should be dismissed, without costs. All concur.