Rosebrock Butter & Egg Co. v. Jorisch — 157 N.Y.S. 234

Majority

p. 234

ROSEBROCK BUTTER & EGG CO., Inc., v. JORISCH et al.

(Supreme Court, Appellate Term, First Department.

February 10, 1916.)

Headnote

Costs <§=^216—Municipal Courts—Taxation op Costs—Review.

Under Municipal Court Code (Laws 1915, c. 279) § 171, providing that within 10 days the clerk’s taxation may be reviewed by the court upon 2 days’ notice, an order passed 19 days after the clerk’s taxation, granting plaintiff’s motion to show cause why judgment for costs in favor of the defendant against the plaintiff should not be set aside, will be reversed, and the judgment for costs reinstated.

[Ed. Note.—For other cases, see Costs, Cent. Dig. § 823; Dec. Dig. <®=»216.] <§=s>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

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

Action by Rosebrock Butter & Egg Company, Incorporated, against Frieda Jorisch and Abe Schneiderman. From a judgment in favor of plaintiff, gs modified by an order reviewing the clerk’s taxation of costs, defendant Schneiderman appeals. Order reversed, and judgment for defendant for costs reinstated.

p. 235

Argued January term, 1916, before GUY, BIJUR, and GA VEGAN, JJ.

Herman S. Goldstein, of New York City (Benjamin Jaffe, of New York City, of counsel), for appellant.

Leon Dashew, of New York City, for respondent.

Judgment was entered in favor of defendant Schneiderman for costs. After the original taxation of costs by the clerk, an order to show cause was served on this defendant why the judgment for costs in favor of defendants and against the plaintiff should not be set aside and vacated and the plaintiff should not have a new trial. Thereafter, and 19 days after the clerk’s taxation, the court which passed upon this order signed an order which denied the motion in so far as it was for a new trial, but which ordered that the taxation of costs by the clerk taxing $15 in favor of this defendant “be and the same hereby is reviewed, and upon such review such taxation of costs is hereby vacated and set aside.” Thisi review of taxation was not in accord with the provision of section 171 of the Municipal Court Code, which provides that “within ten days the clerk’s taxation may be reviewed by the court upon 2 day’s notice.” In this case the 10 days had expired. The review of taxation cannot be supported in the guise of a motion to amend a judgment.

Order reversed, and judgment for defendant for $15 costs reinstated, with $10 costs to appellant.