Ficke v. Hessberg , 127 N.Y.S. 1008 ( 1911 )

BIJUR, J.

Judgment was rendered in this case in favor of the defendant, in effect, dismissing the plaintiff’s complaint upon the merits, with $15 costs to defendants, and also dismissing the defendants’ counterclaim with $30 costs to the plaintiff. Both parties appeal from the judgment. The plaintiff sues for 16 days’ rent, and accrued interest for several years on $500 at 5 per cent. This $500 was deposited under a lease and was to be paid back to the lessee at the end of the term with 5 per cent, interest. By an agreement subsequently made, the $500 was to be applied as rent for the last two months of the lease; the rent being $250 per month. Sixteen days before the end of the term, plaintiff was compelled to vacate the premises under orders of the Building Department, as the structure was claimed to be in a dangerous condition. The lease provided,' inter alia, that the deposit should not be returned unless the plaintiff performed all the conditions of the lease.on his part. The judgment on this point of the case in favor of the defendant is correct, as it is uncontradicted that there were several repairs which plaintiff should have made but did hot.

The counterclaim was for $10,000 for breach of the covenant to repair. It is not necessary to decide the question whether this covenant was so broad as to. hold the tenant to extraordinary as well as ordinary repairs, because the testimony as to the cost of repair was merely a statement of a blanket estimate and duly excepted to as not sufficient and apparently so considered by the court below.

The defendants claim that the item of $30 costs allowed to the plaintiff, upon the dismissal of the counterclaim, is improper. That seems to be true. Costs cannot be imposed in the absence of statutory authority therefor, and they cannot be granted unless the party claiming' them comes within the operation of statutory provision. The only provision allowing the plaintiff costs on recovering a judgment upon a defendant’s counterclaim is contained in subdivision 4 of section 332 of the Municipal Court act (Laws 1902, c. 580), and costs are there authorized only when the plaintiff’s claim is for less than $50 in amount, and the plaintiff recovers judgment on the nonappearance of the defendant, which is not this case.

Judgment upon plaintiff’s .appeal affirmed, with costs.

Judgment upon defendants’ appeal modified by striking therefrom " the .provision allowing plaintiff costs, and as modified affirmed, with costs. Costs of one party to be offset against those of the other. All concur.