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Equitable Trust Co. v. Kirchhoff

140 N.Y.S. 373 Court Argued February term, 1913, before SEABURY, GERARD, and BIJUR, JJ. Decision date 1913-03-07 English

Delivered by BIJUR, J.

Contents

Majority

p. 373
EQUITABLE TRUST CO. v. KIRCHHOFF.
(Supreme Court, Appellate Term, First Department.
March 7, 1913.)

Headnote

Appeal and Error (§ 119*)—Appealable Order—Costs on Dismissal.
An order denying a motion to strike from the record a provision allowing costs to defendant in a judgment of dismissal rendered against plaintiff is not appealable; plaintiff’s remedy being by motion for retaxation of costs and by appeal from the judgment in case the motion is denied.
[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 823-839; Dec. .Dig. § 119.*]
*Tor other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
Appeal from Municipal Court, Borough of Manhattan, First District. _
_ Action by the Equitable Trust Company against Laurence Kirchhoff. From an order of the Municipal Court of the City of New York denying a motion to strike from the record a provision allowing costs to defendant, in a judgment on a dismissal rendered against plaintiff, it appeals. Dismissed.
Argued February term, 1913, before SEABURY, GERARD, and BIJUR, JJ.
McLear & McLear, of New York City (Robert E. McLear, of New York City, of counsel), for appellant.
J. Wilson Bryant, of New York City, for respondent.

The plaintiff appeals from an order denying a motion to strike from the record a provision allowing costs to the defendant in a judgment of dismissal rendered against the plaintiff. Such an order is not appealable. The plaintiff should have moved for a retaxation of costs, and, if that motion had been denied, appealed from the judgment. Spiegelman v. Union Ry. Co., 95 App. Div. 92 , 88 N. Y. Supp. 478 .

Appeal dismissed, with $10 costs. All concur.