Elliott v. Vermilyea — 59 N.Y.S. 181

Majority

p. 181

ELLIOTT v. VERMILYEA.

(City Court of New York, General Term.

June 29, 1899.)

Headnote

Costs—Motion.

. . Notice of plaintiff’s motion “for an order discontinuing this action without costs” does not warrant the granting of the costs of the motion to plaintiff.

Appr-al from special term.

Action by George H. Elliott against Mary Vermilyea. From an order made on plaintiff’s motion, directing the action to be discontinued, with $10 costs to plaintiff’s attorneys, and from a further order denying a resettlement of the first order, defendant appeals.

Reversed

Argued before CONLAN, SCOTCHMAN, and HASCALL, JJ.

John Patterson, for appellant.

O. E. Travis, for respondent.

It appears that this action was brought to recover $94. It was settled by payment, and the following receipt was finally given:

“New York, September 9, 1898.

“Received of Mary Vermilyea ?4 in full settlement suit in city court, George H. Elliott vs. Mary Vermilyea. Johnes & Travis,

“Attorneys for Plaintiff.”

On September 19, 1898, plaintiff’s attorneys gave notice of motion “for an order discontinuing this action without costs.” In this notice of motion they do not ask for costs of motion; consequently none could be granted.

It follows that the order of September 27, 1898, granting $10 motion costs, is erroneous, and should be modified by striking out the $10 costs, and discontinuing the action without costs, as prayed for in the notice of motion. The order of October 3, 1898, denying resettlement, is reversed, inasmuch as the order should have been resettled as indicated. No costs of this appeal to either party. All concur;