Shopiro v. Fairmount Building Co.

Appellate Division of the Supreme Court of New York

Shopiro v. Fairmount Building Co.

257 A.D. 1035, 13 N.Y.S.2d 856, 1939 N.Y. App. Div. LEXIS 8978

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 28, 1939

StatusPublished

This text of 257 A.D. 1035 (Shopiro v. Fairmount Building Co.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Shopiro v. Fairmount Building Co., 257 A.D. 1035, 13 N.Y.S.2d 856, 1939 N.Y. App. Div. LEXIS 8978 (N.Y. Ct. App. 1939).

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Opinion

Order of May 7, 1938, so far as appealed from, affirmed, with ten dollars costs and disbursements. Memorandum: We read the order of May 7, 1938, as being an order made at the foot of the judgment. An appeal from such an order does not permit a review of the judgment itself. Assuming that the judgment of March 28, 1938, is before us for review, we hold that the court had discretionary power to grant the additional allowance. A defense having been [1036]*1036interposed in this action to foreclose mortgages, the court had discretionary power to grant an additional allowance of $2,000, notwithstanding that the case was neither difficult nor extraordinary. (Poughkeepsie Savings Bank v. Herron, 256 N. Y. 339.) The taxable costs allowed by law which section 1077-e of the Civil Practice Act requires to be paid to stay the sale under the judgment of foreclosure and sale, include the additional allowance granted by the court. (Wing v. De La Rionda, 126 N. Y. 680; London v. Van Etten, 57 Hun, 122; Safety Steam Generator Co. v. Dickson Mfg. Co., 61 id. 335.) All concur, Lewis, J., not voting. (The portion of the judgment appealed from grants plaintiff taxable costs, disbursements and allowance in an action to foreclose a mortgage.) Present ■ — • Sears, P. J., Lewis, Cunningham, Taylor and Dowling, JJ.

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Order of May 7, 1938, so far as appealed from, affirmed, with ten dollars costs and disbursements. Memorandum: We read the order of May 7, 1938, as being an order made at the foot of the judgment. An appeal from such an order does not permit a review of the judgment itself. Assuming that the judgment of March 28, 1938, is before us for review, we hold that the court had discretionary power to grant the additional allowance. A defense having been [1036]*1036interposed in this action to foreclose mortgages, the court had discretionary power to grant an additional allowance of $2,000, notwithstanding that the case was neither difficult nor extraordinary. (Poughkeepsie Savings Bank v. Herron, 256 N. Y. 339.) The taxable costs allowed by law which section 1077-e of the Civil Practice Act requires to be paid to stay the sale under the judgment of foreclosure and sale, include the additional allowance granted by the court. (Wing v. De La Rionda, 126 N. Y. 680; London v. Van Etten, 57 Hun, 122; Safety Steam Generator Co. v. Dickson Mfg. Co., 61 id. 335.) All concur, Lewis, J., not voting. (The portion of the judgment appealed from grants plaintiff taxable costs, disbursements and allowance in an action to foreclose a mortgage.) Present ■ — • Sears, P. J., Lewis, Cunningham, Taylor and Dowling, JJ.

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Bluebook (online)

257 A.D. 1035, 13 N.Y.S.2d 856, 1939 N.Y. App. Div. LEXIS 8978, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shopiro-v-fairmount-building-co-nyappdiv-1939.

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