Goldman v. Messing

48 Misc. 651, 96 N.Y.S. 171

• Court: Appellate Terms of the Supreme Court of New York
• Decided: July 1, 1905
• Status: Published

Opinion

Per Curiam.

We find nothing in the case but a conflict of evidence which the justice resolved in defendant’s favor. We cannot say that he should have believed plaintiff’s witnesses, rather than those called by defendant. The judgment awards defendant twenty dollars costs. No verified pleading or written notice of appearance was filed. Consequently, under section 332 of the Municipal Court Act, the defendant was not entitled to costs. Rice v. Hogan, 45 Misc. Rep. 400.

The judgment must be modified by striking out the award of costs and, as so modified, affirmed with costs; the award of costs upon appeal being made because the defect in the judgment is one which might have been, and probably would have been, corrected in the court below, if a proper application to that effect had been made.

Present: Scott, Gildersleeve and MacLean, JJ.

Judgment modified, and as so modified, affirmed, with' costs.