Miss Susan, Inc. v. Enterprise & Century Undergarment Co.

Appellate Division of the Supreme Court of New York

Miss Susan, Inc. v. Enterprise & Century Undergarment Co.

273 A.D. 768, 75 N.Y.S.2d 538, 1947 N.Y. App. Div. LEXIS 3067

Appellate Division of the Supreme Court of the State of New York·Decided December 22, 1947·Published·Cited by 1 cases

Opinion

The sum of $376.22 was paid by defendant in securing an undertaking to stay execution pending appeal from a judgment in favor of the plaintiffs for $18,810.73. Defendant succeeded on appeal in getting this judgment reduced to $3,350.67, and defendant was awarded costs of the appeal. The said sum of $376.22 was afterwards taxed in defendant’s favor under subdivision 9-a of section 1518 of the Civil Practice Act, on the [769]*769basis that it represented the reasonable expense actually incurred in securing an undertaking to stay execution under a judgment “ subsequently reversed.” This judgment was not reversed but modified on appeal. Therefore, the inclusion of the premiums paid to secure the undertaking was unauthorized. Order, so far as appealed from, unanimously reversed, with $20 costs and disbursements to the appellants, and plaintiffs’ motion granted to eliminate from the judgment and bill of costs the said sum of $376.22 for such premiums. Settle order on notice. Present — Peck, P. J., G-lennon, Cohn and Van Voorhis, JJ.

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The sum of $376.22 was paid by defendant in securing an undertaking to stay execution pending appeal from a judgment in favor of the plaintiffs for $18,810.73. Defendant succeeded on appeal in getting this judgment reduced to $3,350.67, and defendant was awarded costs of the appeal. The said sum of $376.22 was afterwards taxed in defendant’s favor under subdivision 9-a of section 1518 of the Civil Practice Act, on the [769]*769basis that it represented the reasonable expense actually incurred in securing an undertaking to stay execution under a judgment “ subsequently reversed.” This judgment was not reversed but modified on appeal. Therefore, the inclusion of the premiums paid to secure the undertaking was unauthorized. Order, so far as appealed from, unanimously reversed, with $20 costs and disbursements to the appellants, and plaintiffs’ motion granted to eliminate from the judgment and bill of costs the said sum of $376.22 for such premiums. Settle order on notice. Present — Peck, P. J., G-lennon, Cohn and Van Voorhis, JJ.

Miss Susan, Inc. v. Enterprise & Century Undergarment Co., 273 A.D. 768, 75 N.Y.S.2d 538, 1947 N.Y. App. Div. LEXIS 3067 (N.Y. Ct. App. 1947).

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Opinion

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