Wetzler v. Silverman

123 N.Y.S. 794

Opinion

PER CURIAM;

This is an appeal by the defendants from an order which dismisses the complaint without costs. The appeal is from that provision of the order which denies the defendants costs on the granting of the dismissal.

In Murthey v. Burke, 121 App. Div. 400, 106 N. Y. Supp. 98, Mr. Justice Hirschberg, writing for the court, said:

“The order cannot be sustained. It is provided by section 822 of the Code of Civil Procedure that, where a plaintiff unreasonably neglects to proceed in an action, the court may, in its discretion, upon application of the defendant, dismiss the complaint and render judgment accordingly. The discretion having been exercised in favor of the defendant, judgment in his favor necessarily follows. The judgment is a final one, and by virtue of the provisions of sections 3228 and 3229 of the Code of Civil Procedure costs belong to the defendant as a matter of right. This was held many years ago in Tillspaugh v. Dick, 8 How. Prac. 33; Parker, J., saying: ‘The dismissal of the complaint 'was a judgment in favor of the defendant, and entitled him to recover whatever items of costs are given by the Code for services rendered.’ ”

The order appealed from should be so modified as to provide for the payment of costs, and, as so modified, affirmed, with $10 costs and disbursements.