Vaccaro v. Rini — 159 N.Y.S. 786

Majority

p. 786

VACCARO v. RINI.

(Supreme Court, Appellate Term, First Department.

June 26, 1916.)

Headnote

Courts <@=>190(2)—Municipal Courts—Decisions Reviewable—Order Taxing Costs.

Under Municipal Court Code (Laws 1915, c. 279) §§ 154, 155, providing that an order can be reviewed in the Supreme Court only on appeal from the judgment, and section 171, giving the Municipal Court power to order retaxation of costs, although section 154 provides that an appeal will lie from an order which the court did not have power to make, an appeal will not lie from an order of the Municipal Court retaxing costs.

[Ed. Note.—For other cases, see Courts, Dec. Dig. <@=>190(2).]

other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

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

Action by Joseph Vaccaro against Michael O. Rini. From an order retaxing costs upon a judgment dismissing the complaint, plaintiff appeals. Appeal dismissed.

Argued June term, 1916,

before GUY, BIJUR, and PHILBIN, JJ.

A. U. Levy, of New York City, for appellant.

Michael O. Rini, of New York City, pro se.

The plaintiff appeals from an order retaxing costs upon a judgment dismissing the complaint. There is no provision in the Municipal Court Code for an appeal from an order of this character. The order can only be reviewed in this court upon an appeal from the judgment. Sections 154 and 155 Municipal Court Code.

The appellant urges that subdivision 8 of section 154 of the Municipal Court Code, which declares that an appeal will lie from an order which the court “had not the power to make,” is applicable to the situation presented here. This position is untenable. The Municipal Court has power to order retaxation of costs. Section 171, Municipal Court Code. Whether or not the justice erred in directing retaxation we do not need to determine, but that he had authority to make the order cannot be questioned.

Appeal dismissed, with $10 costs.