Majority
p. 98EICHHORN v. NEGRIN. (Municipal Court of City of New York, Borough of Manhattan, Second District. March, 1916.)
Headnote
Costs <8=^9—Special Appearance—“Motion”—Statute.Under Municipal Court Code (Laws 1915, c. 279) § 78, allowing a party to appear specially by filing with the clerk, on or before the last day for answering, a notice of special appearance, stating the particular purpose for which he appears, whereupon the case shall be set down for a hearing, and Code Civ. Proc. § 768, defining a motion as an application for an order, a special notice of appearance, interposed for the purpose of moving to set aside the service of the summons and complaint, was in effect an application for an order dismissing! the answer, and hence a “motion,” so that, on granting it and dismissing the action, the court might grant motion costs, under Municipal Court Code, § 167, subd. 1.
[Ed. Note.—For other cases, see Costs, Cent. Dig. §§ 7-15; Dec. Dig. <8=9.
For other definitions, see Words and Phrases, First and Second Series, Motion.]
Action by Herman Eichhorn against Jake Negrin. Motion to set aside service of summons and complaint granted, with costs.
Geza Eichhorn, of New York City, for plaintiff.
Nathan H. Stone, of New York City, for defendant.
In this action a special notice of appearance was interposed for the purpose of moving to set aside the service of the summons and complaint herein. This matter came on for hearing on the 22d day of March, 1916, and the traverse to the service made herein was sustained and the action necessarily dismissed. The attorney, appearing specially herein, moves for an allowance of costs, which is opposed by the plaintiff herein.
Under section 78 of the Municipal Court Code (Laws 1915, c. 279) a party may appear specially by filing with the clerk, on or before the
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last day for answering, a notice of special appearance, stating the particular purpose for which he appears. In that event the case shall be set down for a hearing. Strictly speaking, as the word “traverse” does not appear in the Municipal Court Code it is no more nor less than a motion, except that it has been customary in this court, where a return is traversed, to set the same over for a hearing and have the witnesses orally in court, rather than to determine the facts upon affidavits. It is really nothing more nor less than an application for an order dismissing the action, on the ground that improper service was made. Section 768 of the Code of Civil Procedure defines a motion as follows: “An application for an order is a motion.” Being therefore a motion, I am inclined to the view that the court, in disposing of it, may grant motion costs under section 167 of the Municipal Court Code, subdivision 1.
The motion is therefore granted, and the person appearing herein specially is allowed the sum of $10 costs.