Hyperlawhypertext legal database Tabachnick v. Brand 114 N.Y.S. 445

← Cases

Tabachnick v. Brand

114 N.Y.S. 445 Court N.Y. App. Div. Decision date 1908-12-30 English

Delivered by RICH, J.

Contents

Majority

p. 445
TABACHNICK v. BRAND.
(Supreme Court, Appellate Division, Second Department.
December 30, 1908.)

Headnote

Costs (§ 48[1] )—Municipal Courts—When Recoverable.
Under the direct provision of Municipal Court Act (Laws 1902, p. 1585, c. 580) § 332, defendant is not entitled to costs on a dismissal of the complaint unless he has appeared by an attorney at law, who has filed a verified pleading or a written notice of appearance.
[Ed. Note.—For other cases, see Costs, Dec. Dig. § 48.*]
Appeal from Municipal Court, Borough of Brooklyn, Third District.
Action by William Tabachnick against Leopold Brand. From a judgment dismissing a complaint on the merits, an order opening a default, and an order denying his motion for a retaxation of costs, plaintiff appeals. Affirmed in part, and reversed in part.
Argued before WOODWARD, JENKS, GAYNOR, RICH, and MILLER, JJ.
Walter S. MacGregor, for appellant.
Reich & Brand, for respondent.

The evidence was substantially the same as that given upon the former trial of the action, and we must adhere to our decision ( 123 App. Div. 667 , 108 N. Y. Supp. 40 ) as to the interpreta

p. 446
tion of the written agreement. The discretion of the justice was properly exercised in opening the default, but a mistake was made in denying the motion for a retaxation of costs. There is no authority in the taxing officer to allow costs to the defendant; except where the party has appeared by an attorney at law, who filed a verified pleading, or a written notice of appearance (section 332, Municipal Court Act [Laws 1902, p. 1585, c. 580]), and.as the defendant did not file a verified pleading and neglected to file a written notice of appearance, it follows that the costs were improperly taxed, and plaintiff’s motion should have been granted.

The judgment of the Municipal Court and order opening the default are affirmed, without costs. The order denying plaintiff’s motion for a retaxation is reversed, with $10 costs and disbursements, and the motion granted, with $10 costs. All concur.