Majority
p. 553(17 App. Div. 532.) SMITH v. FLEISCHMAN. (Supreme Court, Appellate Division, First Department. May 21, 1897.) Argued before VAN BRUNT, P. J., and RUMSEY, WILLIAMS, PATTERSON, and PARKER, JJ.
Headnote
.Costs—Right to—Demand in Notice of Motion.Costs of a motion cannot be granted on default where the notice of motion asks for the specific relief, and for “other and further relief,” but does not state that costs will be asked for.
Appeal from special term, New York county. .
Action by Jeremiah T. Smith against Joseph Fleischman. From an order denying a motion to resettle an order granting costs, defendant appeals.
Reversed.
A. H. Parkhurst, for appellant.
B. Hanson,, for respondent.
The demand for relief in the notice of motion to vacate the clerk’s certificate was for an order to vacate “the clerk’s certificate contained in said appeal book, and for such other and further relief as to the court may seem just and proper.” The defendant did not appear upon the hearing of the motion, and the order entered upon his default vacated the clerk’s certificate, with $10 costs
p. 554
to the plaintiff against the defendant, Fleischman. This order was irregular. Where the default of the party has been taken under a notice of motion served upon him, the moving party is entitled to no greater relief than that asked for in his notice, and, unless it is stated in the notice that he will ask for costs, he is not entitled to have them where the motion is granted by default. Costs cannot be granted upon a default under a notice of motion which asks for other and further relief. Crippin v. Ingersoll, 10 Wend. 603 ; Northrup v. Van Dusen, 5 How. Prac. 134. The motion, therefore, to resettle the order granted upon default should have been granted for the reason, stated.
The order denying that motion, therefore, must be reversed, with $10 costs and disbursements, and the motion granted, with $10 costs. All concur.