| N.Y. App. Div. | Mar 22, 1906
The order should be reversed and the motion granted. The judgment was unauthorized ; judgment may not be entered for costs allowed on a motion (Code Civ. Proc. § 779). Moreover, the order of discontinuance should not have been absolute, as it was. It could only impose the costs as a condition of discontinuance, and then the plaintiff would have been free to pay the costs and discontinue, or go on with the action.
Order reversed with costs and disbursements, and motion, granted with costs.
Hirschberg, P. J., Woodward, Rich and Miller, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion granted, with costs.