Canavan v. Emze Cosmetic Shop, Inc.

256 A.D. 1093, 11 N.Y.S.2d 398, 1939 N.Y. App. Div. LEXIS 6253

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 17, 1939
• Status: Published

Opinion

Appeal from an order denying plaintiff’s motion to vacate a subpoena in supplementary proceedings and to vacate a judgment for costs entered against her in favor of two defendants and granting their cross-motion for permission to enter a judgment for costs and retax the costs contained in a judgment theretofore entered against the plaintiff. Order reversed on the law, with ten dollars costs and disbursements, motion of the plaintiff granted and cross-motion of the two defendants denied, with ten dollars costs. The Special Term was without power to make an award of costs in favor of the successful defendants. An application therefor should have been made to the trial court. The defendants made no such application and waived their right so to do. The entry of a judgment for costs without the same having been awarded to the defendants by the trial court was unauthorized and the motion of the plaintiff to vacate the judgment should have have been granted. (Kozlowski v. Gomolski, 224 N. Y. 510, 512; Union Bank of Brooklyn v. Case, 84 N. Y. Supp. 551 [not officially published]; Civ. Prac. Act, § 1476.) The judgment being unauthorized, the subpoena in supplementary proceedings based on said judgment should have been vacated. Lazansky, P. J., Carswell, Adel, Taylor and Close, JJ., concur.