Probst v. Leggett — 84 N.Y.S. 211

Majority

p. 211

PROBST v. LEGGETT et al.

(Supreme Court, Appellate Term.

June 22, 1903.)

Headnote

1. Dismissal—Costs—Taxation.

Under Municipal Court Act (Laws 1902. p. 1561, c. 580) § 248, providing that judgment that the action he dismissed, with costs, without prejudice to a new action, shall be rendered, where plaintiff voluntarily discontinues the action before it is finally submitted on discontinuance before final judgment jthe justice must render judgment of dismissal, with costs, leaving the question of taxation and review to be determined pursuant to sections 341, 342 (page 1589).

Appeal from Municipal Court, Borough of Manhattan, Seventh District.

Action by Samuel Probst against Francis H. Leggett and others. From a judgment for defendants without costs, they appeal. Modified.

Argued before FREEDMAN, P. J., and GILDERSLEEVE and MacLEAN, JJ.

Edward S. Hosmer, for appellants.

Steuer, Hoffman & Wahle, for respondent.

After the trial had been begun, and a witness sworn u.nd examined, the plaintiff applied to discontinue the action, to which the defendants objected unless judgment of discontinuance were awarded them, with costs; but the judgment was rendered in favor of the defendants without costs. By section 248 of the Municipal Court Act (Laws 1902, p. 1561, c. 580) it is provided that “judgment that the action be dismissed with costs without prejudice to a new action, shall be rendered where the plaintiff voluntarily discontinues the action before it is finally submitted.” It was obligatory upon the trial justice to render judgment accordingly, and leave the question of taxation and review to be determined pursuant to the provisions of sections 341 and 342 of the same act (page 1589). See A. Blum, Jr., Sons v. O’Connor (decided at present term) 84 N. Y. Supp. 207 . The judgment must be modified, therefore, by the addition of costs.

Judgment appealed from modified by the addition of costs, and, as modified, affirmed, with costs to the appellants. All concur.