Poggenberg v. Mestaniz — 91 N.Y.S. 342

Majority

p. 342

(46 Misc. Rep. 110)

POGGENBERG v. MESTANIZ.

(Supreme Court, Appellate Term.

December 23, 1904.)

Headnote

1. Appeal—Dismissal—Costs.

Under Municipal Court Act, § 345, Laws 1902, p. 1590, c. 580, providing that, if an appeal is dismissed because neither party brings it to a hearing as prescribed by law, costs shall not be awarded to either party, where an order dismissed an appeal for failure to file a return, with $10 costs to the respondent, unless appellant pay the $10 costs to the respondent and cause the return to b<3 filed within 10 days, etc., and the terms of the order were not complied with, whereupon an ex parte order dismissed the appeal “with costs,” respondent was not entitled to tax $25 costs for appeal to Appellate Term.

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

Action by Henry E. Poggenberg against Liubomir R. Mestaniz. Erom a Municipal Court judgment in favor of plaintiff, defendant, appeals.

Modified and affirmed.

p. 343

Argued before FREEDMAN, P. J., and GIEDERSLEEVE and MacEEAN, JJ.

Bernard H. Arnold, for appellant.

Dudley R. Horton, for respondent.

An appeal having been taken herein from'a judgment rendered in the Municipal Court in favor of the plaintiff, the plaintiff respondent moved in this court to dismiss the appeal on the ground that the defendant had failed to cause the return to be filed and bring tile appeal to a hearing. The order entered upon the decision of the motion provided as follows:

“Ordered that said motion to dismiss the appeal herein he granted, with ten ($10) dollars costs to the respondent, unless the appellant pays the ten ($10) dollars costs to the respondent and causes the return to he filed with 1he clerk of this court within ten days from the service of a copy of this order, with notice of entry thereof, and stipulates to argue the appeal upon the judgment herein at the March term of this court.”

The terms of this order were not complied with, and the plaintiff respondent thereupon procured an ex parte order dismissing the appeal “with costs.” In the bill of costs the clerk taxed $25 for “appeal to Appellate Term,” and the taxation was confirmed by the justice of the Municipal Court. The defendant appeals from so much of the judgment as awards the plaintiff $25 costs.

Section 345 of the Municipal Court Act, Laws 1902, p. 1590, c. 580, provides as follows: “(1) If the appeal is dismissed because neither party brings it to a hearing as prescribed by law, costs shall not be awarded to either party.” The appeal, as we have seen, was never brought to a hearing, and the respondent never became entitled to other than the $10 costs of motion, and disbursements, on dismissal of the 'appeal. Had the ex parte order, entered after failure of the defendant to perfect the appeal, provided for the payment of $10 costs, instead of stating “with costs,” it is probable that the error in taxation would never have occurred.

The judgment herein for $38.40 should be modified by deducting therefrom the item of $25,-and, as thus modified, affirmed, with $10 costs of this appeal to the appellant. All concur.