Opinion
March 3, 1932.
Appeal from the Municipal Court of New York, Borough of Brooklyn, First District.
Frederick Shulman, for the appellant.
Alfred C.B. McNevin, for the respondents.
Judgment unanimously modified, upon the law, by reducing the amount thereof to the sum of eleven dollars, and as so modified affirmed, without costs to either party.
While the evidence warranted a finding that the witness Wasserstrom had power to deliver the stock to the defendants for sale for his own account and, therefore, the plaintiff was not entitled to replevy the same, nevertheless since the action was for replevin the costs were limited by subdivision 11 of section 164 of the New York City Municipal Court Code, to the sum fixed by the plaintiff as the value of the chattel, namely, seventy-five dollars. Moreover, it was error to allow the costs of the minutes on the examination before trial as a disbursement. The language of subdivision 6 of section 170 of the New York City Municipal Court Code is different from that of subdivision 10 of section 1518 of the Civil Practice Act. The case of Harris v. Rogers ( 106 Misc. 638) is, therefore, not controlling.