Egelhof v. Egan , 288 N.Y.S. 509 ( 1936 )

Per Curiam.

The facts clearly establish that there was no holding over his term by defendant (Frost v. Akron Iron Co., 1 App. Div. 449, 453; Byrns v. Pierce, 76 Misc. 176), and summary judgment was properly directed in his favor.

Plaintiff brings up for review the order of the court denying retaxation of defendant’s statutory costs taxed at forty-five dollars upon the theory that within the meaning of subdivision 1 of section 164 of the Municipal Court Code there was a trial after issue joined, and there a e decisions of the court below sustaining such taxation. (Arcadia Hosiery Co., Inc., v. Fine, 135 Misc. 663; Weinberg v. Graf, 140 id. 51.)

But in 1930 (Laws of 1930, chap. 432) the Legislature amended section 164 by inserting therein subdivision 3-a providing that Where plaintiff recovers judgment on motion under rule 113 of the, Rules of Civil Practice costs shall be allowed at one-half the rates prescribed in subdivision 1, thus clearly indicating that within the. meaning of section 164 a summary judgment is not to be deemed a judgment after trial. At the time of the amendment rule 113 did not provide for summary judgment in favor of defendant, and there is no provision in the Municipal Court Code expressly regulating costs for defendant upon recovering summary judgment. In the light of the amendment embodied in subdivision 3-a it follows that we must resort to subdivision 10 of section 164 to ascertain what costs the defendant is entitled to, that subdivision providing that where no provision for costs is otherwise made the court in its discretion may award a sum not exceeding ten dollars. The statutory costs, therefore, must be reduced from forty-five dollars to ten dollars.

Order denying motion to retax costs reversed, and motion granted to the extent of reducing the allowance of costs to seventeen dollars, and judgment modified accordingly, and as modified affirmed, with twenty dollars costs to respondent.

Order of October 8, 1935, affirmed.

All concur. Present — Lydon, Levy and Frankenthaler, JJ.