Herschcovitz v. Kleinman

133 Misc. 685, 233 N.Y.S. 285, 1929 N.Y. Misc. LEXIS 680

• Court: New York Supreme Court
• Decided: February 4, 1929
• Status: Published

Opinion

Levy, J.

Plaintiffs seek leave to enter judgment obtained against them in favor of defendants, the latter having failed to secure such entry. Defendants explain their delinquency by the failure of the clerk to allow them the costs to which they claim to be entitled, and the refusal of plaintiffs to stipulate as to the amount demanded by them. The proper procedure is indicated in McDonough v. Quinn (201 App. Div. 833) where the court said: “ The defendant cannot prevent the entry of a judgment by the plaintiff by refusing to tax his costs on appeal. The defendant will, therefore, be ordered to cause his costs to be taxed within five days * * * if said costs are not so taxed the same will be disallowed.” Applying by analogy the procedure as outlined, defendants will be directed to tax costs within five days and to proceed to the entry of judgment. In default of their so doing, plaintiffs may move to enter judgment without such taxation. If defendants are aggrieved by the disposition of the taxing clerk, obviously they have ample remedy under section 1536 of the Civil Practice Act. Settle order.