M. & S. Electric Co. v. Moskowitz

152 Misc. 412, 272 N.Y.S. 518, 1934 N.Y. Misc. LEXIS 1389

Opinion

Winter, J.

Section 170 of the Municipal Court Code provides that “ A party to whom costs are awarded shall be allowed his necessary disbursements as follows: * * * 6. Such other reasonable and necessary expenses as are prescribed by law or taxable by express provision of law.”

Section 177 provides that where the transcript of the stenographer’s minutes becomes a necessary part of the return on appeal, they should be paid in the first instance by the appellant and be taxable by him as a disbursement on the appeal.

The authority to tax stenographer’s minutes is plainly limited to “ A party to whom costs are awarded.” This defendant, however, was not absolutely awarded costs on the appeal, but his costs were conditioned to abide the event of a new trial. Should the plaintiff again succeed on the new trial, this defendant would not be entitled to the costs or disbursements of his successful appeal, but these would be awarded to the successful party on the new trial. (Greenwald v. Weir, 131 App. Div. 568.)

Accordingly, the taxation by the clerk of the disbursements on appeal was erroneous.

Under section 171 of the Municipal Court Code, however, this court’s power to review this erroneous taxation was limited to a time expiring ten days after taxation. (Rosebrock Butter & Egg Co. v. Jorisch, 157 N. Y. Supp. 234.)

This motion for reargument is granted and the order of May 2, 1934, of this court is vacated, and the plaintiff’s motion to vacate the judgment entered herein is denied.