Harrison v. Swart — 41 N.Y. Sup. Ct. 259

Majority

p. 259

ANNA M. HARRISON, Appellant, v. GEORGE SWART and MARY E. SWART, Respondents.

Headnote

Costs — when to le allowed, as of course, to a successful appellant, on appeal from a judgment of dispossession in summary proceedings — Code of Civil Procedure, secs. 2260, 3066, 3240.

Where a judgment recovered by a plaintiff in summary proceedings to recover the possession of land, instituted before a justice of the peace, is reversed, upon an appeal to the County Court, the defendant is entitled to costs, as of ■ course, under the provisions of sections 2260 and 3066 of the Code of Civil Procedure.

Appeal from an order of the Ulster County Court, denying a motion to set aside a judgment for costs.

William JD. Brinnier, for the appellant.

George Van Etten, for the respondents.

The plaintiff took summary proceedings before a justice of the-peace to recover possession of premises, and recovered. The defendants appealed to the County Court and the matter was reversed. The defendants thereupon entered a judgment against plaintiff for costs. The plaintiff moved to set the judgment for costs aside. The motion was denied and plaintiff appeals. Section 2260 of the-

p. 260

Code says that appeals in such cases may be taken in like manner as from a judgment, etc., and with Mice effect. It is reasonable to apply tbe words “ with Mice effect” to tbe matter of costs on appeal. ■ Section 3066, subdivision 4, gives costs as of course on appeal from a judgment wliere the judgment is reversed. Section 3240, as amended in 1881, puts costs on appeal in special proceedings in tbe discretion of the court, where they are not specially regulated in tbe act.

It seems to us tbat the effect of sections 2260 and 3066 is to specially regulate costs in these summary proceedings, appealed from a justice’s court. the plaintiff in the present case argues tbat section 3240 applies on the ground tbat costs on this appeal are not specially regulated. And therefore insists tbat as the costs in this ■ case were not given by the court they cannot be bad. It should be noticed, however, tbat the judge who reversed the order of dispossession also refused to strike out these costs. At any rate we think the plaintiff overlooks the effect of section 2260, above cited. She urges tbat section 2263 is the only section authorizing costs, and tbat is in case of restitution ordered.

Like many other questions upon tbe construction of several sections of tbe Code, the question may not be free from doubt. But analogy favors tbe construction taken by tbe county judge and we are of tbe opinion tbat he was corrects

Order affirmed, with ten dollars costs and printing disbursements.

Present — Learned, P. J., Bockes and Landon, JJ.

So ordered.