Haniford v. Safer

214 A.D. 435, 212 N.Y.S. 462, 1925 N.Y. App. Div. LEXIS 10542

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 18, 1925
• Status: Published

Opinion

Per Curiam:

These actions were brought in the Supreme Court, Erie county, for damages growing out of an automobile accident. One action was by an infant for personal injuries and the other was brought by his father for loss of services and medical expenses.

The infant was a passenger in the automobile of the defendant Safer, which collided with the car of defendant McCombs and the boy was injured. The cases were tried together and resulted in verdicts against the defendant Safer, the one in favor of the infant being for $100 and the one in favor of the father for $75. But in both actions verdicts were rendered in favor of the defendant McCombs.

She thereupon entered judgments dismissing- the complaints as' to her, with sixty-one dollars and ninety-seven cents costs in each case. On motion of plaintiffs the Special Term vacated these judgments for costs and the defendant McCombs appeals.

Plaintiffs were not entitled to costs as against the defendant Safer, for the actions could have been brought in the City Court of Buffalo and recoveries against Safer in each case being less than $250, costs couíd not be taxed against the said defendant. (Civ. Prac. Act, § 1474, subd. 7.) The provisions of section 1476 of the Civil Practice Act are inapplicable.

Plaintiffs were not entitled to costs against the defendant McCombs for there was no recovery against her in either case, the verdicts being in her favor. Therefore, the first clause of section 1475 of the Civil Practice Act applies and is controlling and defendant McCombs is entitled to costs and the judgments she entered therefor were proper.

The orders should be reversed, with ten dollars costs and disbursements in each case, and motions denied, with ten dollars costs, and the judgments for costs reinstated.

All concur. Present — Hubbs, P. J., Clark, Sears, Crouch and Taylor, JJ.

In each case order reversed, with ten dollars costs and disbursements, judgment reinstated and motion denied, with ten dollars costs.