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Bowery Bank v. Hart

132 N.Y.S. 1119 Court N.Y. App. Div. Decision date 1911-12-29 English

Delivered by CLARKE, J.

Contents

Majority

p. 1119
BOWERY BANK OF NEW YORK v. HART et al.
(Supreme Court, Appellate Division, First Department.
December 29, 1911.)

Headnote

Costs (§§ 156, 157[1] ) — Allowance of Costs.
Where an action was dismissed for want of prosecution, “with all taxable costs and disbursements to defendant to date,” defendant was entitled to $15 costs after notice of trial, $30 trial fee, and $50 for five term fees.
[Ed. Note. — For other cases, see Costs, Cent. Dig. §§ 605, 612, 613-617; Dec. Dig. §§ 156, 157.[1] ]
Appeal from Special Term, New York County.
Action by the Bowery Bank of New York against Max Hart and another. From an order of the clerk denying defendants’ motion for retaxation of costs, defendants appeal. Order reversed, with directions.
Argued before INGRAHAM, P. J., and CLARKE, McLAUGHLIN, SCOTT, and DOWLING, JJ.
Joseph Rosenzweig, for appellants.
Andrew Wilson, for respondent.

This is an action in equity for the foreclosure of a mortgage. Issue was joined October, 1901. Plaintiff had judgment February 17, 1902. Upon appeal to this court said judgment was reversed, and a new trial ordered, with costs to abide the event December 5, 1902. Plaintiff failed to proceed with the action, and by order of July 10, 1911, the Special Term granted a motion to dismiss upon the ground of want of prosecution, “with all taxable costs and disbursements to defendants to date, together with $10 costs of this motion.” Thereupon defendants served a bill of costs and gave notice of taxation. The plaintiff did not appear, but the clerk disallowed $15 costs after notice of trial, $30 trial fee, issue of fact, $50 for five term fees. A motion for retaxation was denied by the Special Term, and defendants appeal.

The three items disallowed were taxed to the plaintiff when it got its judgment. Therefore the propriety of the items as taxable was established. The defendants were allowed all taxable costs to date. They were therefore entitled to these items.

The order appealed from should be reversed, and the clerk directed to allow the items stricken out and retax the bill accordingly, with $10 costs and disbursements. All concur.