Todd v. Beck — 134 N.Y.S. 1108

Majority

p. 1108

TODD v. BECK.

(Supreme Court, Appellate Term.

May 9, 1912.)

Headnote

Costs (§ 32^[1] )—Statutory Provisions.

As the only authority for the taxation of costs upon the dismissal of a defendant’s counterclaim is Municipal Court Act (Laws 1902, c. 580) § 332, subd. 4, which provides that, upon a judgment for a plaintiff on the counterclaim in an action brought for a sum less than $50 in which the defendant interposed a counterclaim amounting to $50 or over, the court

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shall allow as costs the sum the plaintiff would be entitled to recover if the amount of his claim were the amount of the defendant’s counterclaim, costs were improperly taxed in favor of a plaintiff, suing for more than $50, upon the dismissal of a counterclaim for $175 and a judgment for plaintiff in the sum of $43.80.

[Ed. Note.—For other cases, see Costs, Cent. Dig. §§ 108, 111-114; Dec. Dig. § 32.*]

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

Action by Isaac Todd against Maks Beck. From a judgment for plaintiff, taxing costs upon a dismissal of the defendant’s counterclaim, defendant appeals. Modified and affirmed.

Argued April term, 1912, before SEABURY, GUY, and GERARD, JJ.

Jacob W. Block, of New York City, for appellant.

Nathan Kelmenson, of New York City, for respondent.

The defendant appeals from so much of a judgment as taxes $15 in favor of the plaintiff upon a dismissal of the defendant’s counterclaim. Plaintiff sued, claiming $154. The defendant counterclaimed for $175. Upon the trial the defendant’s counterclaim was dismissed, and the jury found a verdict upon plaintiff’s claim for the sum of $43.80. Upon motion of the plaintiff, the clerk.was directed to tax $15 to the plaintiff upon the dismissal of defendant’s counterclaim.

The right to tax costs is given by statute, and in the Municipal Court is fixed by section 332 of the Municipal Court Act and the several subdivisions thereof. The only provision in that section for the recovery of costs by the plaintiff upon the dismissal of a defendant’s counterclaim is contained in subdivision 4, which provides that:

“Where an action is brought by the plaintiff for a sum less than $50, and the defendant shall have interposed a counterclaim amounting to $50 or more, and the plaintiff recovers judgment upon the counterclaim, the same sum as plaintiff would have been entitled to recover if the amount of his claim were the amount of the defendant’s countérelaim.”

As the action was brought by plaintiff for a sum over $50, he is not entitled to recover costs upon the dismissal of defendant’s counterclaim.

Judgment modified, by striking therefrom the sum of $15 costs, and, as modified, affirmed, with $15 costs to appellant.