Higgins v. O'Donnell

256 A.D. 981, 10 N.Y.S.2d 302, 1939 N.Y. App. Div. LEXIS 5764

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 6, 1939
• Status: Published

Opinion

Appeal by plaintiff in an ejectment action (a) from an order denying .her motion to dismiss defendant’s equitable counterclaim (still to be tried; see 254 App. Div. 877) for insufficiency, or for a direction that it be made more definite and certain, and (b) from an order staying the collection of trial and appeal costs awarded to her as the prevailing party in her ejectment action. Order denying motion for dismissal of counterclaim or for direction that it be made more definite and certain affirmed, without costs. Plaintiff may procure further information concerning defendant’s counterclaim and limit his proofs at the impending trial by obtaining a bill of particulars. Order staying collection of plaintiff's costs reversed on the law, with ten dollars costs and disbursements, and motion denied, with ten dollars costs. Plaintiff is entitled as of right to the costs awarded her, without regard to whether defendant may be awarded costs on the trial of his counterclaim, iCiv. Prae. Act, § 1470, subd. 1; Id. § 1483; 8 Carmody’s New York Practice, § 237.) Hagarty, Carswell, Johnston, Taylor and Close, JJ., concur.