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Gilroy v. Stampfer

61 N.Y.S. 924 Court N.Y. City Ct. Decision date 1899-12-27 English

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p. 924
GILBOY v. STAMPFER.
(City Court of New York, General Term.
December 27, 1899.)

Headnote

Costs—Dismissal—Note of Issue.
Where defendant, after serving a notice of trial, but without filing a note-of issue, as required by Code Civ. Proc. § 977, on filing such a notice, had the action dismissed for want of prosecution, he was not entitled to> costs.
Appeal from special term.
Action by John I. Gilroy against Josephine Stampfer. From an order denying costs to defendant, she appeals. Affirmed.
Argued before FITZSIMONS, O. J., and SCHUCHMAN and. O’DWYER, JJ.
M. Strassman, for appellant.
Wensley & Gilroy, for respondent.

Defendant served a notice of trial, and subsequently had this action dismissed for want of prosecution. The clerk allowed defendant, upon taxation of costs, $15 for costs after notice of trial. This item was disallowed by special-term justice.. From the order entered this action is taken. Heither party filed note of issue. Under the circumstances, the disallowance was proper-

p. 925
Defendant was only entitled to costs after notice of trial, if lie filed a note of issue. See Code Civ. Proc. § 977.

Order affirmed, with costs.