Majority
p. 505GIMBERNAT v. GIMBERNAT. (Supreme Court, Appellate Term, First Department. December 30, 1915.) Argued December term, 1915, before GUY, PAGE, and PFTIEBIN, JJ.
Headnote
Replevin <@=>117—Judgment—Costs.Wliere, in replevin, judgment for defendant was modified on motion, so as to award plaintiff some of the articles for which the action was brought, plaintiff is entitled to costs, based upon the agreed value of the articles.
[Ed. Note.—For other cases, see Replevin, Cent. Dig. §§ 460-469; Dec. Dig. <@=>117.]
<gz=s>For other cases see same topic & KEY-NUMBI3R in all Key-Numbered Digests & Indexes
Appeal from Municipal Court, Borough of Manhattan, Fifth District.
Action by Clara E. Gimbernat against Ruth M. Gimbernat. From a judgment for defendant, and an- order modifying the judgment, plaintiff appeals. Modified and affirmed.
Philip Carpenter, of New York City (Joseph T. Weed and Frank P. Ufford, both of New York City, of counsel), for appellant.
J. Robert Rubin, of New York City (J. Robert Rubin and Edward Weiss, both of New York City, of counsel), for respondent.
The action was in replevin. Upon the trial the complaint was dismissed, and judgment entered in favor of the defendant for costs. Thereafter, upon motion, the judgment was modified, and two articles, of the agreed value of $85, were awarded to the plaintiff. Upon the trial another article, of the agreed value of $50, was
p. 506
delivered by the defendant to the plaintiff. No change was made, however, in the provisions for costs. As the plaintiff had,been successful as to some of the articles for which the action was brought, she was entitled to costs, based upon their agreed value.
Judgment, as modified in the court below, is further modified, by striking therefrom the provision for costs to the defendant, and inserting instead, “$15 costs to the plaintiff,” and, as thus modified, affirmed, with $10 costs to, the appellant. All concur.