Opinion
January, 1911.
Herman Kahn, for appellants.
Walter E. Godfrey, for respondent.
The material facts in this case are undisputed. In 1908 this court reversed a judgment in favor of the plaintiffs and ordered a new trial "with costs to the appellant to abide the event." When the case came up for retrial, the plaintiffs failed to appear and the complaint was dismissed, the clerk of the Municipal Court making an entry in the docket book to that effect. The defendant taxed no costs or disbursements until in May, 1910, after the plaintiffs had begun a new action, when the defendant applied to the clerk to tax its costs and disbursements. The clerk in effect refused to do so. Thereupon the defendant moved before a justice of the Municipal Court for an order providing for the taxation of its costs and disbursements. This motion was granted, and the costs and disbursements of the defendant were taxed at the sum of sixty-six dollars and twenty-five cents, the items being ten dollars costs on dismissal of the complaint, thirty dollars costs upon reversal, and twenty-six dollars and twenty-five cents disbursements, and this amount was inserted in the judgment docket book. The plaintiff thereafter moved to strike out the item of ten dollars costs upon dismissal of the complaint, which motion was denied.
Plaintiffs appeal from the order granting the allowance of costs, from the order denying their motion to strike out the ten dollars and from the judgment as amended by inserting therein the said costs.
I am constrained to hold that the defendant was correct in its practice. The reversal of the judgment in this court awarded costs to the defendant to "abide the event." When the plaintiffs defaulted and their complaint was dismissed, the action was terminated, and the "event" upon which depended the defendant's right to costs of the reversal had happened. It was also entitled to the costs upon a dismissal and to its disbursements. These costs could have been immediately taxed by the clerk and inserted in the judgment. The reason for the delay was, as stated by the defendant's attorney, that the plaintiffs intended to move to open their default. Section 341 of the Municipal Court Act contains no time limit in which costs must be taxed. The omission of any fixed time in which costs must be taxed seems to indicate that the Legislature intended the practice in that court to be the same as in courts of record where costs may be taxed at any time at or after judgment is entered. This court held, in the case of Allen v. Wells, Fargo Co., 48 Misc. 610, that: "There was no irregularity in the taxation of costs, in that more than five days had elapsed from the date when judgment was rendered. The insertion of costs was not an amendment of the judgment, since the statute evidently contemplates that the judgment is not complete until the costs are inserted (Municipal Court Act, §§ 341, 342); and no limit of time is fixed for the taxation after judgment is rendered;" and it was held in People ex rel. Solomon v. Lang, 109 A.D. 706, that: "The decision of the clerk that these statutory costs could not be included in the judgment constituted a taxation of costs for the purposes of review, under the provisions of said section 342."
The defendant was clearly entitled to its costs and disbursements, and no right of the plaintiffs has been disregarded nor have they been harmed by the result.
GIEGERICH and BRADY, JJ., concur.
Judgment and orders affirmed, with costs.