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Pape v. Tomoor

123 N.Y.S. 924 Court N.Y. App. Term Decision date 1910-06-24 English

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p. 924
PAPE v. TOMOOR.
(Supreme Court, Appellate Term.
June 24, 1910.)

Headnote

Costs (§ 22[2] )—Allowance—Sufficiency—“Issue of Fact Raised by Appearance and Answer.”
Municipal ■ Court Act (Laws 1902, c. 580) § 332, subd. 2, provides that where, after trial of an issue of fact raised by answer, plaintiff recovers $400 or over, he shall have $30 as costs. Subdivision 3 declares that where,, upon .nonappearance of defendant or failure to answer, plaintiff
p. 925
recovers $400 or over, he shall have $15 as costs. Held, that where a verified complaint and answer were served, and the issue adjourned for trial, and defendant defaulted, and plaintiff had judgment for over $400, he was entitled to $30 costs; there being a trial of an “issue of fact raised by appearance and answer” of defendant, within subdivision 2.
[Ed. Note.—For other cases, see Costs, Dec. Dig. § 22.[2] ]
Appeal from Municipal Court, Borough of Manhattan, Ninth District.
Action by Otto E. Pape against Henry E. Tomoor. Erom so much of a judgment for plaintiff in the Municipal Court of the City of New York as awarded costs to plaintiff, and from an order denying plaintiff’s motion to amend the judgment by increasing the costs, plaintiff appeals.
Judgment modified, by increasing the costs, and, as modified, affirmed.
Argued before SEABURY, GUY, and BIJUR, JJ.
Philip Carpenter, for appellant.

The plaintiff filed and served a verified complaint, •and the defendant served a verified answer. The issue thus joined was adjourned for trial. Upon the day set for trial the defendant defaulted, and the plaintiff gave testimony in support of his cause of action, and was awarded a judgment for the sum of $439.33 damages, $2 costs, and $15 “allowance,” which was taxed by the clerk. The plaintiff thereafter moved for a review of taxation, claiming that he was entitled to the sum of $30 costs, instead of $15. This motion was denied, and the plaintiff appeals from the judgment as rendered, and asks that the same be modified by granting him an allowance of $30 costs.

Section 332, subd. 2, of the Municipal Court act (Laws 1902, c. 580) provides:

“Where after- the trial of an issue of fact raised by appearance and answer of defendant, plaintiff recovers judgment for * * * four hundred dollars •or over, thirty dollars” as costs.

Subdivision 3 of the same section declares that:

“Wlhere upon nonappearance or failure of the defendant to answer plaintiff recovers judgment for * * * four hundred dollars or over, fifteen dollars” as costs.

The plaintiff herein under the foregoing provisions was clearly entitled to $30 costs. There was a trial “of an issue of fact raised by appearance and answer of the defendant.” People ex rel. Kempner v. Wilson, 34 Misc. Rep. 273 , 68 N. Y. Supp. 850 .

Judgment modified, by increasing the allowance of costs to the sum of $30, and, as modified, affirmed, with $15 costs to appellant.

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