Holloway v. Frensdorf

183 A.D. 579, 171 N.Y.S. 22, 1918 N.Y. App. Div. LEXIS 5981

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 21, 1918
• Status: Published

Opinion

Jenks, P. J.:

It appears that the learned County Court at Special Term did not exercise discretion in its refusal to allow the item of a trial fee to the defendant upon plaintiff’s application to serve an amended complaint, inasmuch as the order expressly states that such item “ is not allowed to the defendant on the ground that there has been no trial of this action.” The affidavit in support of the application shows that when the case came on for trial, a motion to dismiss the first cause of action was granted, and thereupon leave was granted to the plaintiff to withdraw a juror that she might move to serve an amended complaint. Thus the plaintiff, upon her application, was relieved from dismissal as a favor. The Special Term could have allowed the trial fee. (Browning v. Goldman, 35 Misc. Rep. 272; Dewey v. Stewart, 6 How. Pr. 465; Mott v. Consumers’ Ice Co., 8 Daly, 244; Starr Cash Car Co. v. Reinhardt, 6 Misc. Rep. 365.) The correctness of the dismissal of the plaintiff at Trial Term is not up for review. So far as this appeal is concerned, the plaintiff avowedly acquiesced in the decision, by motion for leave to serve the amended pleading.

The order of the County Court of Westchester county is reversed, with ten dollars costs and disbursements, and the matter is remitted to the Special Term of that court for reconsideration on the merits with respect to the said item.

Mills, Blackmar, Kelly and Jaycox, JJ., concurred.

The order of the County Court of Westchester county is reversed, with ten dollars costs and disbursements, and the matter is remitted to the Special Term of that court for reconsideration on the merits with respect to the said item.