Majority
p. 172WHITMAN CO. v. TRAVERS BAILEY CO. (Supreme Court, Appellate Term. November 24, 1905.) Argued before SCOTT, P. J., and GIEDERSEEEVE and MacEEAN, JJ.
Headnote
Costs—Discontinuance at Trial.Under Municipal Court Act, Laws 1902, pp. 1585, 1586, c. 580, § 332, subds. 3, 6, providing that where, on defendant’s nonappearance, plaintiff recovers judgment for more than $200 and less than $300, he shall be awarded $10 costs, and that, where defendant recovers on plaintiff’s nonappearance, costs shall be awarded defendant in the same manner, defendant in an action for between $200 and $300 is entitled to $10 costs, where plaintiff discontinues after commencement of trial.
Appeal from Municipal Court, Borough of Manhattan, First District.
Action by the Whitman Company against the Travers Bailey Company. From an order denying a motion to correct an indorsement of the decision on the summons, defendant appeals.
Affirmed.
Ferguson & Ferguson, for appellant.
Bookstaver & Norton, for respondent.
After the trial had commenced and one witness had been examined, plaintiff moved to discontinue the action, which motion was granted, on payment of $10 costs. The defendant thereafter made a motion to correct the indorsement of the decision made by the justice on the summons by substituting $20 costs for $10 costs. The motion was denied, and . defendant appeals from the
p. 173
order denying the motion. Municipal Court Act, Laws 1902, pp. 1585, 1586, c. 580, § 332, subds. 3, 6, and Blum v. O’Connor (Sup.) 84 N. Y. Supp. 207 , apply here. Where the summons demands between $200 and $300, and the action is discontinued, the defendant gets $10 costs.
Order affirmed, with costs and disbursements.