Rosenberg v. Nieweroski

Appellate Terms of the Supreme Court of New York

Rosenberg v. Nieweroski

173 Misc. 1075, 19 N.Y.S.2d 666, 1940 N.Y. Misc. LEXIS 1702

CourtAppellate Terms of the Supreme Court of New York

DecidedApril 3, 1940

StatusPublished

This text of 173 Misc. 1075 (Rosenberg v. Nieweroski) 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

Rosenberg v. Nieweroski, 173 Misc. 1075, 19 N.Y.S.2d 666, 1940 N.Y. Misc. LEXIS 1702 (N.Y. Ct. App. 1940).

Pincite

Opinion

Per Curiam.

Although an attorney who appears in that capacity for himself as a party is ordinarily entitled to costs, plaintiff here is not. By subscription to the summons and complaint and moving upon the ground sworn in his affidavit that he appeared in person and not as an attorney, and accepting the benefits of the order granting him the relief sought under section. 95 of the Municipal [1076]*1076Court Code, he elected to sue and appear as a lay person. In Rathkopf v. Coussa (233 App. Div. 86) plaintiffs appeared in person, but subscribed themselves as “ Attorneys for plaintiffs,” served their own notice of trial and conducted all stages of the litigation as attorneys. There it was held the case was not within the provisions of section 95 of the Municipal Court Code. The recovery is also excessive. Unpaid services were worth not more than $250.

Judgment reversed and new trial ordered, with thirty dollars costs to appellants to abide the event, unless plaintiff within ten days after service of order entered hereon stipulates to reduce the judgment as entered to $250, in which event judgment as so modified affirmed, without costs.

Appeal from orders dismissed.

McCook and Hammer, JJ., concur; Miller, J., dissents.

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Per Curiam.

Although an attorney who appears in that capacity for himself as a party is ordinarily entitled to costs, plaintiff here is not. By subscription to the summons and complaint and moving upon the ground sworn in his affidavit that he appeared in person and not as an attorney, and accepting the benefits of the order granting him the relief sought under section. 95 of the Municipal [1076]*1076Court Code, he elected to sue and appear as a lay person. In Rathkopf v. Coussa (233 App. Div. 86) plaintiffs appeared in person, but subscribed themselves as “ Attorneys for plaintiffs,” served their own notice of trial and conducted all stages of the litigation as attorneys. There it was held the case was not within the provisions of section 95 of the Municipal Court Code. The recovery is also excessive. Unpaid services were worth not more than $250.

Judgment reversed and new trial ordered, with thirty dollars costs to appellants to abide the event, unless plaintiff within ten days after service of order entered hereon stipulates to reduce the judgment as entered to $250, in which event judgment as so modified affirmed, without costs.

Appeal from orders dismissed.

McCook and Hammer, JJ., concur; Miller, J., dissents.

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Bluebook (online)

173 Misc. 1075, 19 N.Y.S.2d 666, 1940 N.Y. Misc. LEXIS 1702, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rosenberg-v-nieweroski-nyappterm-1940.

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