43 Misc. 79 | N.Y. App. Term. | 1904
The plaintiff began this proceeding in August, 1903, to recover possession of certain portions of the premises numbers 332 and 336 East Fifteenth street, New York city, on the ground that the tenant was holding over beyond his term without permission of the landlord.
After the disagreement of the jury at a trial had August 11, 1903, the case was set down to be retried on August twenty-fifth following. On the latter date the proceeding was discontinued on the application of the landlord, the justice awarding fifteen dollars costs to the tenant. The precept bears an indorsement to that effect. The amount allowed as costs consisted solely of disbursements for jury fees and witnesses’ fees. Subsequently and on August 26,1903, the land
The specific ground upon which the justice refused to allow the defendant his disbursements as costs was that in his opinion there was no provision of law authorizing any costs on the discontinuance of summary proceedings brought in the Municipal Court of the city of New York.
On this point I differ with the learned justice. The jurisdiction of the Municipal Court in summary proceedings is based on section 1, subdivision 12, of the Municipal Court Act. Laws of 1902, chap. 580. Under this provision jurisdiction is conferred in: “A summary proceeding under title two of chapter seventeen of the code of civil procedure to recover possession of real property which, or a portion of which, is situated within the district wherein the application for such recovery is made.”
Other than the above enactment there is no provision of the Municipal Court Act under which costs may be allowed in summary proceedings. Referring now to the Code sections thus incorporated into the Municipal Court Act we find
It follows from these considerations that the prevailing party is entitled to certain amounts as costs in summary proceedings in the Municipal Court. Those costs, however, consist only of disbursements actually made or expenses actually incurred, and may not exceed fifteen dollars and witnesses’ fees in certain cases (Code Civ. Pro., § 3076, subd. 1), and in all other eases they are limited to ten dollars besides fees of witnesses from out of the county. Code Civ. Pro., § 3076, subd. 2.
In the case at bar the landlord voluntarily discontinued his proceeding before final submission, and an order in the nature of a final order was made dismissing the proceeding, without prejudice to a new proceeding. The tenant was the
Therefore, in view of the fact that the Code provisions referred to above allow costs in summary proceedings “ at the rate allowed by law in an action in justice’s courts,” with like limitations (Code Civ. Pro., § 2250), and in view of the further fact that these Code provisions have been incorporated in the Municipal Court Act (§ 1, subd. 12), I am of opinion that the tenant was entitled to receive his actual disbursements to the extent of ten dollars, besides the fees of witnesses coming from out of the county, if any, as provided in subdivision 2 of section 3076 of the Code of Civil Procedure.
Under the circumstances I think that the order of September 14, 1903, disallowing the fifteen dollars as costs, should be reversed, and that the final order made on September 15, 1903, by which the proceeding was dismissed, should be modified so as to award the tenant as costs his actual disbursements, not exceeding ten dollars, besides the fees of witnesses, if any, coming from out the county, and as so modified the order should be affirmed, with costs to the appellant.
Fbeedmau, P. J., and MacLean, J., concur.
Order of September 14, 1903, disallowing fifteen dollars as costs, reversed and final order made September 15, 1903, by which proceeding was dismissed, modified so as to award the tenant as costs his actual disbursements, not exceeding ten dollars, besides witnesses’ fees, if any, of witnesses coming from out the county, and as so modified affirmed, with costs to appellant.