Pape v. Tomoor ( 1910 )

PER CURIAM.

The plaintiff filed and served a verified complaint, •and the defendant served a verified answer. The issue thus joined was adjourned for trial. Upon the day set for trial the defendant defaulted, and the plaintiff gave testimony in support of his cause of action, and was awarded a judgment for the sum of $439.33 damages, $2 costs, and $15 “allowance,” which was taxed by the clerk. The plaintiff thereafter moved for a review of taxation, claiming that he was entitled to the sum of $30 costs, instead of $15. This motion was denied, and the plaintiff appeals from the judgment as rendered, and asks that the same be modified by granting him an allowance of $30 costs.

Section 332, subd. 2, of the Municipal Court act (Laws 1902, c. 580) provides:

“Where after- the trial of an issue of fact raised by appearance and answer of defendant, plaintiff recovers judgment for * * * four hundred dollars •or over, thirty dollars” as costs.

Subdivision 3 of the same section declares that:

“Wlhere upon nonappearance or failure of the defendant to answer plaintiff recovers judgment for * * * four hundred dollars or over, fifteen dollars” as costs.

The plaintiff herein under the foregoing provisions was clearly entitled to $30 costs. There was a trial “of an issue of fact raised by appearance and answer of the defendant.” People ex rel. Kempner v. Wilson, 34 Misc. Rep. 273, 68 N. Y. Supp. 850.

Judgment modified, by increasing the allowance of costs to the sum of $30, and, as modified, affirmed, with $15 costs to appellant.