Goldman v. Messing — 96 N.Y.S. 171

Majority

p. 171

(48 Misc. Rep. 651)

GOLDMAN v. MESSING.

(Supreme Court, Appellate Term.

November 24, 1905.)

Headnote

Costs—Allowance to Defendant.

Under Municipal Court Act, Laws 1902, p. 1585, c. 580, § 332, allowing costs to the prevailing party if he shall have appeared by an attorney, who files a verified pleading or a written notice of appearance, where no verified pleading or written notice of appearance was filed, defendant was not entitled to costs on obtaining a judgment.

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

p. 172

Action by Harris Goldman against Wolf Messing. From a judgment for defendant, plaintiff appeals.

Modified.

Argued before SCOTT, P. J., and GIEDERSEEEVE arid MacEEAN, JJ.

John Manheimer, for appellant. '

Joseph Wilkenfeld, for respondent.

We find nothing in the case but a conflict of evidence, which the justice resolved in defendant’s favor. We cannot say that he should have believed plaintiff’s witnesses, rather than those called by defendant. The judgment awards defendant $20 costs. No verified pleading or written notice of appearance was filed. Consequently, under section 332 of the municipal court act (Laws 1902, p. 1585, c. 580), the defendant was not entitled to hosts. Rice v. Hogan, 45 Misc. Rep. 400 , 90 N. Y. Supp. 395 .

The judgment must be modified, by striking out the award of costs, and, as so modified, affirmed, with' costs; the award of costs upon appeal being made because the defect in the judgment is one which might have been, and probably would have been, corrected in the court below, if a proper application to that effect had been made.