Lapof v. Rigerman

Appellate Terms of the Supreme Court of New York

Lapof v. Rigerman

126 Misc. 569, 214 N.Y.S. 81, 1926 N.Y. Misc. LEXIS 599

CourtAppellate Terms of the Supreme Court of New York

DecidedFebruary 5, 1926

StatusPublished

Cited by3 cases

This text of 126 Misc. 569 (Lapof v. Rigerman) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Lapof v. Rigerman, 126 Misc. 569, 214 N.Y.S. 81, 1926 N.Y. Misc. LEXIS 599 (N.Y. Ct. App. 1926).

Pincite

Opinion

Delehanty, J.

The action was brought to take and state an account. On the trial the complaint was dismissed on the ground that the court had no jurisdiction of the subject-matter. The costs were taxed at sixty-five dollars based on the amount set forth in the summons. That a court has the power to award' costs where the action is dismissed for lack of jurisdiction is beyond question. (Day v. Sun Insurance Office, 40 App. Div. 305; affd., on opinion below, 167 N. Y. 543; Seacoast Trust Co. v. Mugman, 184 App. Div. 895.)

A dismissal of the case at the trial for lack of jurisdiction was a trial within the purview of subdivision 7 of section 164 of the New York City Municipal Court Code and the statutory costs therein provided followed as matter of course. The court below, therefore, erred in striking out the costs as fixed in the judgment.

The order should be reversed and the motion denied, with ten dollars costs.

Order reversed, with ten dollars costs and motion denied.

All concur; present, Bijur, Delehanty and Wagner, JJ.

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Delehanty, J.

The action was brought to take and state an account. On the trial the complaint was dismissed on the ground that the court had no jurisdiction of the subject-matter. The costs were taxed at sixty-five dollars based on the amount set forth in the summons. That a court has the power to award' costs where the action is dismissed for lack of jurisdiction is beyond question. (Day v. Sun Insurance Office, 40 App. Div. 305; affd., on opinion below, 167 N. Y. 543; Seacoast Trust Co. v. Mugman, 184 App. Div. 895.)

A dismissal of the case at the trial for lack of jurisdiction was a trial within the purview of subdivision 7 of section 164 of the New York City Municipal Court Code and the statutory costs therein provided followed as matter of course. The court below, therefore, erred in striking out the costs as fixed in the judgment.

The order should be reversed and the motion denied, with ten dollars costs.

Order reversed, with ten dollars costs and motion denied.

All concur; present, Bijur, Delehanty and Wagner, JJ.

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Bluebook (online)

126 Misc. 569, 214 N.Y.S. 81, 1926 N.Y. Misc. LEXIS 599, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lapof-v-rigerman-nyappterm-1926.

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