In re the Estate of Di Muro

1 Misc. 2d 647, 148 N.Y.S.2d 769, 1956 N.Y. Misc. LEXIS 2145

Opinion

McGrath, S.

This is an application by a successful respondent for leave to make the order of the Appellate Division the order of this court and to tax the costs awarded by the appellate court. The unsuccessful appellant requests this court to disallow the item of $40 for argument in the Appellate Division because the appeal was submitted by both sides and he argues that when the statute speaks of costs “ for argument ”, it means oral argument only.

The contention of the appellant is without merit. The court is of the opinion that a submission of an appeal on the merits without oral argument is an argument within the provisions of section 1508 (subd. 1, par. b) of the Civil Practice Act and the successful party, if allowed costs by the appellate court, is entitled to costs for argument even if the case is submitted without oral argument (Malcolm v. Hamill, 65 How. Prac. 506; Matter of Wray Drug Co., 93 App. Div. 456, 458).

Costs taxed accordingly and order signed.