Cullinan v. Federal Union Surety Co.

51 Misc. 643

Opinion

Smith, J.

In the case of Cullinan v. Burkard, 93 App. Div. 31, 86 N. Y. Supp. 1003, in an action upon a similar bond, the court decided that the action was upon a contract obligation, and not one to recover a penalty or forfeiture impressed by statute. The plaintiff is, therefore, entitled to recover costs of the action by force of provision of section 3228, subdivision 4, of the Code of Civil Procedure. The affidavits presented to the clerk on presentation of witnesses’ fees and disbursements were sufficient to justify his taxation of such disbursements. I know of no reason why plaintiff . should not be allowed to tax disbursements for witnesses and ' fees when the witnesses are special excise agents. See also Lyman v. Young Men’s Cosmopolitan Club, etc., 38 App. Div. 220, 56 N. Y. Supp. 712.

Motion denied, with ten dollars costs.