Schechter v. Smith

185 Misc. 918, 57 N.Y.S.2d 886, 1945 N.Y. Misc. LEXIS 2361

• Court: New York County Courts
• Decided: September 29, 1945
• Status: Published

Opinion

Tuck, Acting J.

This is a motion by the judgment debtor to vacate the order granted herein in supplementary proceedings under date of June 17, 1944, and that the proceedings be dismissed with costs and that the judgment entered herein on June 15, 1944, be corrected by striking therefrom the items of costs and disbursements, and each of them, and that the same be retaxed at nothing.

A judgment was taken by default by plaintiff against defendant for $8.61. Plaintiff’s attorney had the county clerk, ex officio clerk of the County Court, tax the costs and disbursements of $19.49. Costs and disbursements and the award are regulated and controlled completely by statute. A litigant is not entitled to costs unless pursuant to statutory authority provision is made therefor.

The action herein was an action upon contract and the provisions of sections 1470 and 1472 of the Civil Practice Act apply, and in particular subdivision 11 of section 1470, since the complaint herein demands judgment for a sum of money only.

Section 1472 provides that in an action other than all those specified in subdivisions 1 to 10, both inclusive, of section 1470 of this Act, in which the complaint demands judgment for a sum of money only, the plaintiff is not entitled to costs unless he recovers the sum of $50 or over.

There is no exception to this authority that costs may be awarded where the amount claimed is less than $50 when the defendant does not appear. Whether he appears or whether he is in default is not distinguished in the provisions of the section. Disbursements can only be charged to a party to whom costs are awarded. (Civ. Prac. Act, § 1518.) Consequently, no disbursements may be included in the judgment where the judgment creditor has not become entitled to costs.

Section 1536 authorizes a relaxation of costs at any time in the court’s discretion.

The taxation of costs heretofore had is vacated and a relaxation of costs is ordered.

It follows therefore that the orders and proceedings supplementary to judgment should also he vacated.

Enter order accordingly.