Dunbar v. Ingraham

Appellate Division of the Supreme Court of New York

Dunbar v. Ingraham

275 A.D.2d 898

Appellate Division of the Supreme Court of the State of New York·Decided May 19, 1949·Published

Opinion

Memorandum: This appeal is from the order denying the motion to vacate the order granting the mistrial. (See Fine v. Cummins, 260 App. Div. 569, and Matter of Taylor, 271 App. Div. 947.) It was within the discretion of the trial court to order the withdrawal of a juror and a mistrial, but that part of the order awarding $100 costs to the plaintiff to be paid by the defendant before proceeding further to defend the action, is unauthorized. Costs upon trial of an action are regulated by statute and not otherwise. (See Modern Silk Co. v. Weinstein, 100 Misc. 358; Finck v. Stachelberg, 86 N. Y. S. 20, 21; Browning v. Brokaw, 114 App. Div. 104.) The order appealed from should be modified so as to provide that the provision of the order of mistrial awarding $100 costs to the plaintiff should be stricken therefrom All concur. (One order directs a mistrial in an automobile negligence action; one order denies defendants’ motion to vacate the order granting a mistrial.) Present — Taylor, P. J., MeCurn, Vaughan, Kimball and Piper, JJ.

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Memorandum: This appeal is from the order denying the motion to vacate the order granting the mistrial. (See Fine v. Cummins, 260 App. Div. 569, and Matter of Taylor, 271 App. Div. 947.) It was within the discretion of the trial court to order the withdrawal of a juror and a mistrial, but that part of the order awarding $100 costs to the plaintiff to be paid by the defendant before proceeding further to defend the action, is unauthorized. Costs upon trial of an action are regulated by statute and not otherwise. (See Modern Silk Co. v. Weinstein, 100 Misc. 358; Finck v. Stachelberg, 86 N. Y. S. 20, 21; Browning v. Brokaw, 114 App. Div. 104.) The order appealed from should be modified so as to provide that the provision of the order of mistrial awarding $100 costs to the plaintiff should be stricken therefrom All concur. (One order directs a mistrial in an automobile negligence action; one order denies defendants’ motion to vacate the order granting a mistrial.) Present — Taylor, P. J., MeCurn, Vaughan, Kimball and Piper, JJ.

Dunbar v. Ingraham, 275 A.D.2d 898 (N.Y. Ct. App. 1949).

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