Hayes v. Borden — 121 N.Y.S. 1134

Majority

p. 1134

HAYES v. BORDEN.

(Supreme Court, Appellate Term,

February 18, 1910.)

Headnote

Appeal from

p. 1135

City Court of New York, Special Term. Action by Nellie M. Hayes against Bertram Borden. From an order in favor of plaintiff, defendant appeals. Modified. See, also, 119 N.° Y. Supp. 156.

W. C. Low, for appellant.

E. I. S. Hart, for respondent.

Order modified, by allowing the consent and order of discontinuance to be vacated upon payment by the plaintiff to the defendant of all the taxable costs and disbursements of the action, as of an issue brought to trial, including the trial fee, to be taxed by the clerk of the court below within five days of the date of service of a copy of this order and notice of entry thereof upon plaintiff’s attorney, together with $10 costs and the disbursements of this appeal, and, further, that in the event that the plaintiff should fail to pay the said costs and disbursements to the defendant within five days after the said taxation of the costs above referred to, the order will be reversed, with $10 costs and disbursements of this appeal.

.LEHMAN, J., votes for reversal.