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Elliott v. Vermilyea

57 N.Y.S. 218 Court N.Y. City Ct. Decision date 1899-03-28 English

Delivered by HASCALL, J.

Contents

Majority

p. 218
(27 Misc. Rep. 189.)
ELLIOTT v. VERMILYEA.
(City Court of New York, General Term.
March 28, 1899.)

Headnote

1. Appealable Order—Discontinuance.
An order granting a discontinuance on plaintiff’s motion, with costs, is not an order allowing costs of motion, and hence is appealable.
2. Same—Costs.
An order granting a discontinuance on plaintiff’s motion, with $10 costs "to “plaintiff’s attorney,” was, if not signed through inadvertence, an abuse of discretion.
Appeal from special term.
Action by George H. Elliott against Mary Vermilyea. From an order of discontinuance, defendant appeals.
Modified.
Argued before FITZSIMONS, C. J., and HASCALL, J.
John Patterson, for appellant.
Johnes & Travis, for respondent.

This is an appeal from an order of the special term, made September 27, 1898, granting discontinuance of the action, upon plaintiff’s motion, with $10 costs to the plaintiff’s attorneys. The respondent contends that this is “an appeal from an order allowing costs of motion,” and, therefore, not appealable, under the case of Lennox v. Eldred, 65 Barb. 526 , and others. We do not agree with him. We think that the order was inadvertently signed, as it is not usual, and certainly, in this case, not proper, to charge defendant with the costs of granting a favor to plaintiff.

p. 219
Moreover, the order reads “with ten dollars costs to the plaintiff’s attorneys,” and this makes it still more evident that the order was prepared by attorneys for presentation for signature in the hurry of chambers business, as costs are awarded to a party, and not to the attorney. Ordinarily, if imposed at all, motion costs are awarded against the plaintiff who desires to retire his suit, and are to compensate defendant for being needlessly taken into court. In the case at the bar, it is apparent that the order under criticism is too harsh and arbitrary to be within sound discretion. Fleischman v. Fleischman (Sup.) 30 N. Y. Supp. 1131 .

The order appealed from is modified, by striking out the provision therein giving the plaintiff costs against the defendant, to be paid to the plaintiff’s attorney, and by inserting, in lieu thereof, $10 costs of motion to defendant, and, as so modified, affirmed, with $10 costs of this appeal, besides disbursements for printing, to be taxed.

FITZSIMONS, C. J., concurs.

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