Opinion
May 26, 1959
Calli, Calli Palewski ( William S. Calli of counsel), for plaintiffs.
Merritt Vaughan and John Tenney for defendant.
Action by Nicoletta Leo for personal injuries and by Frank Leo for medical expense and loss of services wherein there was a jury verdict for plaintiff, Nicoletta and in favor of defendant against plaintiff, Frank Leo. Defendant has entered a judgment for costs against Frank Leo and plaintiff moves to cancel and discharge the judgment. In this case there was a single complaint and a single answer.
There appears to be a conflict of authority on the point.
In Parler v. City of New York (72 N.Y.S.2d 430 [1947]) Justice CAPOZZOLI wrote: "Some cases hold that costs are not properly taxable under these circumstances (Antonietti v. Pearson, 153 Misc. 803; 276 N.Y.S. 52; Girou et al v. Metropolitan Distributors, Inc., 181 Misc. 345 * * *; Piels v. Tron, 187 Misc. 547 * * *; Boldin v. Smith, 161 Misc. 696 * * *); others hold to the contrary (Cooperman v. Rendina, 148 Misc. 47 * * *; Karolczyk v. Gratton, 127 Misc. 78 * * *)."
In view of the dictum in Salimoff Co. v. Standard Oil Co. ( 259 N.Y. 219, 222) to the effect that, "The very purpose sought to be accomplished by section 209 would be somewhat frustrated if by consolidation into one action, costs were allowed on the basis of separate actions."
The court in the Parler case refused costs.
The weight of authority is against the taxation of costs in the instant case.
Motion granted.