Benning v. Pouker , 104 N.Y.S. 409 ( 1907 )

Brady, J.

Plaintiff sues to recover back twenty-five dollars, paid to the defendant, a lawyer, on an agreement to procure the discharge of a friend incarcerated in the city prison on a charge of burglary. The defendant sets up a counterclaim for one hundred dollars. The evidence shows sufficiently that the defendant did not keep his contract and the plaintiff is entitled to recover back the amount paid. The record shows that judgment was awarded by the justice below on January 15, 1907, in favor of plaintiff for twenty-five dollars damages and four dollars and forty-one cents costs and fifteen dollars extra costs .and dismissing .the counterclaim. Appellant claims that judgment was originally entered on January 15, 1907, without including the fifteen dollars extra costs, and that the clerk, without notice, included the amount in the judgment after that date; and the record contains moving papers on a motion made by the defendant to amend the judgment by striking out that item and also an order of the justice below denying said motion. It does not appear whether the motion was denied upon the ground that the statement of facts contained in the moving papers was not sustained, or that the justice concluded that the taxation was proper. The appeal is taken, however, from the judgment and brings up the question of the right of the plaintiff to the fifteen dollars extra costs on the dismissal of the defendant’s counterclaim. Section 332, subdivision 4, of the Municipal Court Act, allows costs to plaintiff where the sum claimed is under fifty dollars, and the defendant interposes a counterclaim of fifty dollars or over and the plaintiff recovers judgment upon the nonappearance of the defendant. This provision does not authorize the plaintiff here to tax the fifteen dollars extra costs, because her recovery was not upon the nonappearance of defendant. It may be considered singular that extra costs are allowed to plaintiff on the nonappearance of defendant who has set up a counterclaim and that no .provision is made for such recovery where the defendant appears on the trial and his counterclaim is dismissed; but the omission of such provision, strange as it seems, exists.

The judgment should be reduced to the sum of twenty-nine dollars and forty-one cents by striking out the item of fifteen dollars extra costs, and, as so modified, affirmed without costs in this court.

Gildersleeve and Seabury, JJ., concur.

Judgment reduced to twenty-nine dollars and forty-one cents, by striking out item of fifteen dollars extra costs, and, as so modified, affirmed without costs in this court.