142 Misc. 531 | City of New York Municipal Court | 1932
The plaintiff is an attorney at law. He instituted an action against the defendant, in which he appeared as his own attorney. He recovered a judgment of $54.58.
Apparently on the theory that because he was the plaintiff in the action he could not appear as his attorney in the action, the clerk has refused to allow or tax the ten dollars statutory costs provided by section 164 of the Municipal Court Code.
Mindful of the adage suggesting the folly of the client who retains himself for his counsel — why be eager to augment the hazards of such a relationship?
Long ago this query was answered, and I am in accord with the ruling and the reasoning of that learned court.
“ In the case of Crommeline v. Dinsmore, decided by Judge McAdam (Daily Reg., October 18th, 1878), to which we are referred, it was held that the prevailing party prosecuting the suit in person, if he is an attorney, can recover costs ■— a decision that is not in conflict with Stewart v. New York Common Pleas, [10 Wend. 597] for what was said by the court there was that ‘ a party not an attorney conducting a suit or defense in person is not entitled to costs.’
“ But the present case was in a District Court, and in respect to District Courts there is a special statutory enactment upon the subject. The Act of 1857, reorganizing these courts, provides (Section 70), that ‘ neither party shall recover extra costs unless he has an attorney actually engaged in the prosecution or defense of the action ’ (L. 1857, 725, 726).
“ I think, therefore, that the Justice was right in holding that, being an attorney, he was entitled to the costs given to him, and that the judgment as rendered by the Justice, for the damages given, and costs, should be affirmed.” (Kopper v. Willis, 9 Daly, 460.)
Recently the Appellate Division took an analogous view in construing section 95 of the Municipal Court Code in Rathkopf v. Coussa (233 App. Div. 86).
Motion granted. Clerk directed to tax the costs.
Chap. 344, pp. 725, 726.— [Rep.