Feldmark v. Weissman

61 Misc. 321, 113 N.Y.S. 761

• Court: Appellate Terms of the Supreme Court of New York
• Decided: December 15, 1908
• Status: Published

Opinion

Ford, J.

This is an appeal from so much of a judgment of dismissal against plaintiff as awards costs to. the defendants and from an order denying plaintiff’s motion to modify the judgment by striking from it the provision awarding costs.

The summons as served was made returnable at a date more remote from the date of service than is provided by statute. The defendants appeared specially and procured the dismissal of the action. Judgment was thereupon entered for fifteen dollars costs against the plaintiff who contends that this judgment was unwarranted by law. I agree with him upon the ground that the Municipal Court Act makes no provision for costs under such circumstances.

The judgment should be modified -by striking out the provision for costs, and, as so modified, affirmed with ten dollars costs and disbursements to the appellant.

The appeal from the order should be dismissed without costs.

Giegerich and Hendrick, JJ., concur.

Appeal dismissed, without costs.