Hyde v. Anderson

Appellate Division of the Supreme Court of the State of New York

Decided March 22, 1906

Appellate Division of the Supreme Court of the State of New York · decided 1906-03-22

Appeal by the plaintiff, Benjamin Hyde, from an order of. the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 20th day of June, 1905, denying the plaintiff’s motion to vacate a judgment for costs theretofore entered in said clerk’s office in. favor of the defendant Robert O.. Andérson. • _■■■■■ . The plaintiff made a motion to the Special Term for leave to discontinue.

Decided 1906-03-22

Gaynor, J.:

¶1The 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.

¶2Order reversed with costs and disbursements, and motion, granted with costs.

¶3Hirschberg, P. J., Woodward, Rich and Miller, JJ., concurred.

¶4Order reversed, with ten dollars costs and disbursements, and motion granted, with costs.