Yates-Smith Co. v. Doyle — 132 N.Y.S. 273

Majority

p. 273

YATES-SMITH CO. v. DOYLE.

(Supreme Court, Appellate Term.

December 22, 1911.)

Headnote

Courts (§ 180^[1] ) — -Power to Award Costs — Motion to Set Aside Judgment.

The Municipal Court has no authority to impose costs on the denial of a motion to set aside a judgment.

[Ed. Note. — For other cases, see Courts, Dec. Dig. § 189.^[1] ]

Appeal from Municipal Court, Borough of Manhattan, Third District.

Action by the Yates-Smith Company against Adían J. Doyle. From a judgment for plaintiff, after trial before the court without a jury, defendant appeals. Modified and affirmed.

Argued before GIEGERICH, LEHMAN, and PENDLETON, JJ.

Bernard Alexander, for appellant.

Williams, Folsom & Strouse (Charles M. McLaren, of counsel), for respondent.

The judgment is well supported by the evidence and no questions of law are presented. It includes, however, an allowance of $10 motion costs, for which there is apparently no authority. The defendant claims that the costs were allowed erroneously upon the denial of the motion to set aside the judgment.

The formal order denying the motion was entered on June 19th, and contains no provision for costs; but upon the notice of motion the trial justice has indorsed the words, “Motion denied, with $10 costs, May 29th.” The judgment roll also shows that the original judgment was signed on May 26th, and was for the sum of $236.67, and that the words, “Motion costs, June 1, 1911, $10.00,” and a new total of $246.67, were added thereafter. A careful search of the record shows no other order which was granted or denied, with costs. There is no authority in the Municipal Court to impose costs upon the denial of a motion to set aside a judgment.

The judgment must therefore be modified, by striking out the provision of $10 motion costs, and, as modified, affirmed, without costs.