Bloomingdale v. Luchow — 75 N.Y.S. 28

Majority

p. 28

BLOOMINGDALE v. LUCHOW et al.

(Supreme Court, Appellate Division, First Department.

March 7, 1902.)

Headnote

1. Costs—Discontinuance of Action.

Where plaintiff is permitted to discontinue, costs should he awarded only to the defendants opposing the discontinuance.

2. Same—Death of Defendant—Appearance of Attorney.

The death of a defendant does not relieve plaintiff of such costs, where such defendant’s attorney was served with notice, and appeared and opposed the motion.

Appeal from special term, New York county.

Action by Lyman G. Bloomingdale against August Luchow and others. From an order permitting plaintiff to discontinue action, plaintiff and defendants appeal.

Modified and affirmed.

Argued before VAN BRUNT, P. J., and HATCH, McLAUGHLIN, O’BRIEN, and LAUGHLIN, JJ.

S. L. Samuels, for appellant.

Henry Schmitt, for respondents.

This order should be modified by confining the award of costs to the only defendants opposing the motion, namely, August Luchow, Richard Stein, and Charles H. Lehman. It is true the latter died, but his attorney was served with notice, and appeared and opposed the motion.

As so modified, the order should be affirmed, without costs of this appeal.