Claflin v. Robertson

New York Supreme Court

Claflin v. Robertson

6 N.Y.S. 430, 1 Silv. Sup. 176, 23 N.Y. St. Rep. 305, 1889 N.Y. Misc. LEXIS 617

New York Supreme Court·Decided April 12, 1889·Published·Cited by 2 cases

Opinion

Maoomber, J.

Had the order in this action, from which the appeal is .taken, been the same as the one in which Hiram Exstein was plaintiff, heard at the present term of court, [ante, 429,) the same, for the reason "stated in the opinion in the Exstein Case, would doubtless have been affirmed. But the order in this ease permitted a discontinuance absolutely upon payment of motion costs of $10 only. This we think it was not competent for the .county judge to order. This action is one at law to recover money only, where the costs are not discretionary, but are regulated by statute. The order appealed from should be reversed, with costs, leaving the plaintiffs to proceed as they may be advised. All concur.

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Maoomber, J.

Had the order in this action, from which the appeal is .taken, been the same as the one in which Hiram Exstein was plaintiff, heard at the present term of court, [ante, 429,) the same, for the reason "stated in the opinion in the Exstein Case, would doubtless have been affirmed. But the order in this ease permitted a discontinuance absolutely upon payment of motion costs of $10 only. This we think it was not competent for the .county judge to order. This action is one at law to recover money only, where the costs are not discretionary, but are regulated by statute. The order appealed from should be reversed, with costs, leaving the plaintiffs to proceed as they may be advised. All concur.

Claflin v. Robertson, 6 N.Y.S. 430, 1 Silv. Sup. 176, 23 N.Y. St. Rep. 305, 1889 N.Y. Misc. LEXIS 617 (N.Y. Super. Ct. 1889).

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