Ewell v. Kennedy — 85 N.Y.S. 1129

Majority

p. 1129

EWELL, Appellant, v. KENNEDY et al., Respondents.

(Supreme Court, Appellate Term.

January 7, 1904.)

Headnote

Action by Raine Ewell against John Kennedy and others. From an order of the City Court of New York directing the clerk to tax defendants’ bill of costs, and to enter judgment for defendants for the costs so taxed, plaintiff appeals.

Modified.

Frank C. Mebane (Isaac N. Miller, of counsel), for appellant. Atwater & Cruikshank, for respondents.

We do not think that any question of title to real property arises under the pleadings in this action to entitle the plaintiff to a full bill of costs, as claimed by him,

p. 1130

under section 3228 of the Code of Civil Procedure. So far, however, as the order directs the entry of judgment in favor of the defendants for the amount of the costs as taxed, it is unauthorized ; and the order appealed from should be modified by striking out the provision to that effect, and, as modified, affirmed, without costs to either party.