Newburgh Savings Bank v. Losen , 295 N.Y.S. 595 ( 1937 )

Noonan, J.

Upon the foregoing papers this motion for a dismissal of the action is granted upon condition that the defendants pay the sum of thirty-one dollars and ten cents as taxable costs and disbursements on the settlement of the order herein. This sum is made up of costs before note of issue is filed, twenty-five dollars; filing a lis pendens and a complaint, four dollars and ten cents; and service of the summons and complaint upon one defendant, two dollars. (Civ. Prac. Act, § 1504.) Section 1077-e of the Civil Practice Act permits a defendant in an action to foreclose a mortgage to obtain from the court a dismissal of the action upon the payment to the plaintiff of taxable costs and disbursements and the remedying of any default other than the payment of principal or any installment of principal in any case where the action has not proceeded to final judgment. It appears that in this action the defendant owed the sum of $105.60 for arrears of land and water taxes which were paid to the plaintiff subsequent to the commencement of this action. The plaintiff contends that, before a dismissal is obtained, the additional allowance provided by section 1512 of the Civil Practice Act should be a taxable item in the amount of forty dollars and sixty cents. This additional allowance is granted in accordance with the section when the action proceeds to final judgment or at half the rate when the action is settled before judgment. It will be noted that section 1077-e of the Civil Practice Act was enacted subsequent to section 1512 of the same act and was a part of the mortgage moratorium scheme to aid distressed mortgagors. Under such circumstances a dismissal of the action upon payment of the taxable costs and disbursements provided cannot be said to be a settlement of the action. Settle order on notice.