Servidone v. Hirschmann

268 A.D. 1075 | N.Y. App. Div. | 1945

Motion for reargument denied with twenty-five dollars costs. Motion for a resettlement of the order directing a personal judgment is granted without costs. The action was for the foreclosure of a mechanic’s lien, and was tried -in the same manner that such an action would usually be tried. Through dilatory tactics, and deft manipulation of the record title to the property involved, the record owner was eliminated as a party to the action before judgment was rendered. However, in its inception the action was for the foreclosure of a lien, and we think this fact, especially under the circumstances disclosed, empowers the court to award discretionary costs. Such costs are made discretionary by statute in a lien action (Lien Law, § 63). The order herein may be resettled by striking therefrom any reference to costs and disbursements of the action as taxed in the sum of $492.54, with interest from December 16, 1943, and by the insertion of a direction for the allowance of costs and disbursements, as awarded by the court in its discretion, in the sum of $370.61, with interest from the 16th day of December, 1943. Any finding of fact or conclusion of law inconsistent herewith is amended to conform with the foregoing. Hill, P. J., Heffernan, Foster and Lawrence, JJ., concur; Brewster, J., taking no part, [See ante, p. 347.]