Majority
p. 318(79 Misc. Rep. 84.) BENJAMIN et al. v. BROWNSTEIN et al. (Supreme Court, Appellate Term, First Department. January 13, 1913.) Argued January term, 1913, before SEABURY,. LEHMAN, and PAGE, JJ.
Headnote
1. Costs (§ 227[1] )—On Appeal—Amount.On an appeal to the Appellate Term from an order of the City Court at Special Term, granting or denying a new trial on the ground of newly discovered evidence, only $10 costs and disbursements are allowed, and1 disbursements are not taxable, unless specified in the order of the Appellate Term.
[Ed. Note.—For other cases, see Costs, Cent. Dig. § 847; Dec. Dig. § 227.*]
2. Costs (§ 264*)—On Appeal—Omission prom Order—Resettlement.
Where an allowance of costs and disbursements was by an oversight omitted from the order of the Appellate Term affirming an order of the City Court granting a new trial on the ground of newly discovered evidence, a motion to resettle the order to include such costs and disbursements will be entertained.
[Ed. Note.—For other cases, see Costs, Cent. Dig. §§ 1004-1008; Dec. Dig. § 264.*]
Appeal from City Court of New York, Special Term.
Action by Ephraim Benjamin and another, copartners trading as Benjamin Bros., against Daniel J. Brownstein and others, individually and as copartners trading as Brownstein, Newmarlc & Louis. Erorn an order denying a motion to strike out certain items from a bill of costs taxed by plaintiffs, defendants appeal.
Reversed, and motion granted.
See, also, 137 N. Y. Supp. 1111 ; 138 N. Y. Supp. 1107 .
•David Bernstein, of New York City, for appellants.
Morris & Samuel Meyers, of New York City, for respondents.
[1] Upon an appeal to this court from an order made at a Special Term of the City Court granting or denying a motion for a new trial upon the ground of newly discovered evidence, only $10 costs and disbursements are allowable. Brennan v. Joline, 70 Misc. Rep. 537 , 127 N. Y. Supp. 676 . Disbursements are not taxable, unless so specified in the order. Wilson v. Lange (Sup.) 84 N. Y. Supp. 519 .
[2] The omission in the order of this court to grant the plaintiffs $10 costs and disbursements upon the affirmance of the order granting a new trial in the City Court upon the ground of newly discovered evidence was evidently an oversight, and the plaintiffs should have
p. 319
applied for a resettlement of the order. Unless the defendants will stipulate that the plaintiffs may tax $10 costs and their disbursements, a motion to resettle the .order will be entertained. As the case now stands, however, the order appealed from must be reversed, with $10 costs and disbursements, and the item of $20 before argument, $40 for argument, and $48.38 disbursements, stricken from the bill of costs allowed in the lower court as appeal costs, etc.
Order reversed, with $10 costs and disbursements, and motion
Cases cited
- Brennan v. Joline 70 Misc. Rep. 537 p. 318