Mallery v. Interurban Street Railway Co.

92 N.Y.S. 60

• Court: Appellate Terms of the Supreme Court of New York
• Decided: February 16, 1905
• Status: Published

Opinion

PER CURIAM.

In this action, as in a number of others, the appellant, conceding that, under the recent decision of the Court of Appeals in Griffen v. Interurban Street Railway Company, 179 N. Y. 438, 72 N. E. 513, it cannot prevail upon this appeal, seeks leave to withdraw the appeal without costs, or upon other conditions involving the payment of' less than the full statutory costs upon the affirmance of a judgment. The-allowance of costs in this court upon appeals from the Municipal Court-is regulated by statute, and the court is given no discretion except when-the judgment or final order appealed from is modified, or a new trial' is granted, which is not the case here. An appeal may be dismissed'without costs only when neither party brings it to a hearing, which,, again, is not the case here. When the judgment or final order is reversed, ■ costs must be awarded to the appellant, and, when affirmed,, must be awarded to the respondent. Nowhere in the Municipal Court act, nor in the rules promulgated by the Appellate Division, is there to-be found any provision for the withdrawal, against the objection of the-respondent, of an appeal once taken and perfected, nor the devolution-upon the court of the power to allow such withdrawal. Upon similar applications to the present it has been the rule to dismiss the appeal,. but always upon payment of a full bill of costs. Brown v. Simons, 14 Daly, 456; Mackay v. Lewis, 73 N. Y. 382. In the present case, and? all other similar cases, the appellant- concedes that it cannot prevail, upon appeal. There is therefore no occasion to dismiss the appeal, and ithe judgment must be affirmed, with costs.

Judgment affirmed, with costs.