100 Misc. 482 | N.Y. App. Term. | 1917
Lead Opinion
The plaintiff has demanded in its summons and complaint the sum of $2,001.79 with interest. The defendants voluntarily appeared and interposed an answer in which they alleged that. ‘ ‘ it appears on the face of the summons and of the complaint that the court has no jurisdiction of the subject of the action.” Inasmuch as the court was clearly without jurisdiction, the plaintiff moved for leave to discontinue without costs. The court permitted the discontinuance but decided that the plaintiff must pay taxable costs. Thereafter the costs were taxed at the sum of thirty-seven dollars and fifty cents and a judgment for that amount was entered. Under section 164 of the Municipal Court Code, subdivision 9, costs upon a discontinuance before trial are one-half of the amount which would be awarded after trial as provided in subdivision 7 of that section. Costs awarded under subdivision 7 after a trial where the defendant is successful are determined by the amount of the plaintiff’s demand in the summons. If the defendants had been successful at the trial and their costs were determined by the amount of the demand in the summons, the costs would have amounted to the sum of one
There is considerable authority in this state that where it appears upon the face of the summons that the court has no jurisdiction of the subject matter of the action the court has also no jurisdiction to award costs upon a dismissal. It is urged, however, that upon this appeal we have no right to consider this point because the plaintiff has not appealed from the judgment, and the only matter we have a right to consider is the amount of costs provided for in section 164, where costs may be imposed. That contention, however, seems to me unsound. It may well be that we have no right to reverse this judgment or to modify it in the plaintiff’s favor where the plaintiff has not appealed from it, but if defendants are
Ordway, J., concurs.
Dissenting Opinion
Plaintiff demanded in its summons $2,001.79 (an amount admittedly beyond the jurisdiction of the court). Plaintiff moved to discontinue without costs. Defendants consented to the discontinuance but insisted upon costs. The court permitted the discontinuance and imposed thirty-seven dollars and fifty cents costs. Appellants now urge, and correctly as I think, that pursuant to section 164 of the Municipal Court Code the costs should have been fifty-five dollars.
Upon a reading of the material subdivisions of that section, namely, 1, 7, 8 and 9, it appears that defendants are entitled to one-half of the costs “ based on plaintiff’s demand in the summons,” which would be ten dollars costs for fifty dollars demanded, fifteen dollars for any amount under two hundred dollars, and for every additional one hundred dollars or fractional part thereof five dollars. Full costs on this basis would be one hundred and ten dollars, and one-half thereof fifty-five dollars.
Respondent urges on the authority of certain cases cited that no costs at all should have been awarded where it appears on the face of the proceedings that the court had no jurisdiction of the subject-matter. The cases cited, however, as I read them merely intimate it to be a proper course that, where want of jurisdiction appears upon the face of the proceedings, the trial court should dismiss the suit without costs. I do not understand what difference it makes how or where want of jurisdiction appears, but it is unnecessary to decide whether the course indicated is held to be the only correct one or should have been pursued in the instant case; because plaintiff here afforded the court no opportunity to follow it. What actually happened was that the plaintiff elected to discontinue and thus brought himself within the provisions of the Municipal Court Code and outside of the scope of the
This case is an exceptional one in that the summons demands a recovery.in an amount beyond the jurisdiction of the court. The error thus committed by plaintiff, however, affords to my mind no ground for refusing to defendants the amount of costs prescribed by law and apportioned to the peril to which they have been subjected.
Appeal dismissed, with costs.