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Goldstein v. Perlman

128 N.Y.S. 21 Court N.Y. App. Term English

Delivered by BIJUR, J.

Contents

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p. 21
GOLDSTEIN v. PERLMAN.
(Supreme Court, Appellate Term.
February, 1911.)

Headnote

Costs (§ 48[1] )—Right to Costs—Discontinuance.
Where plaintiff sued in the Municipal Court ior $248.26, and after partial proof discontinued, defendant should be allowed $10, as provided by Municipal Court Act (Laws 1902, c. 5S0) § 832, subd. 6, relating to costs where defendant recovers judgment on the nonappearance of the plaintiff, and not $20, as authorized by subdivision 2, on recovery by plaintiff.
[Ed. Note.-—For other cases, see Costs, Cent. Dig. §§ 192-210; Dec. Dig. § 48.[1] ]
Appeal from Municipal Court, Borough of Manhattan, Second District.
Action by Max Goldstein against Robert Perlman. Prom a judgment for defendant, plaintiff appealed, bringing up for review an order denying a motion for retaxation of costs.
Modified and affirmed.
Argued before SEABURY, PAGE, and BIJUR, JJ.
Abraham Brill, for appellant.
Israel M. Lerner, for respondent.

Plaintiff sued for $248.25. After partial proof, he discontinued. Twenty dollars costs were awarded to defendant under section 332, subd. 2, of the Municipal Court act (Laws 1902, c. 580). The costs should have been awarded under subdivision 6. See Blum v. O’Connor (Sup.) 84 N. Y. Supp. 207 ; Whitman Co. v. Travers Bailey Co. (Sup.) 96 N. Y. Supp. 172 .

Judgment modified, by striking therefrom the amount of $10 costs, and, as so modified, affirmed, with $10 costs to appellant. All concur.