Opinion
August, 1919.
Jacob M. Guedalia, for motion.
Robert Jablin, opposed.
This is a summary proceeding brought by the landlord to obtain possession of premises under a claim of non-payment of rent. The landlord was successful in the Municipal Court, where the proceeding originated, and also on appeal taken to the Appellate Term. But, on the appeal that was allowed to the Appellate Division, the decisions in the other courts were reversed and the proceeding dismissed, "with the costs in all courts."
This is a review of the clerk's taxation of costs. The landlord objects to the items of twenty dollars before argument and forty dollars for argument in the Appellate Division, and twenty dollars for making and serving a case on appeal in that court, which were allowed by the clerk. This is not an action but is a special proceeding. Both counsel agree there is no special provision made by law fixing the costs in such a situation as here is found. And, in the absence of a statutory provision, either special or general, no costs can be awarded. Matter of City of Brooklyn, 148 N.Y. 107. The tenant claims that section 3251 of the Civil Code, subdivisions 3 and 4, gives the right to these costs. But this is not so. That section merely fixes the amount of the costs if they are awarded. There is a section, however, to which neither counsel referred which does seem to apply. It is section 3240. That reads: "Costs in a special proceeding instituted in a court of record, or upon an appeal in a special proceeding, taken to a court of record, where the costs thereof are not specially regulated in this act, may be awarded to any party, in the discretion of the court, at the rates allowed for similar services, in an action brought in the same court, or an appeal from a judgment taken to the same court, and in like manner."
That section clearly covers this situation. Under it, the Appellate Division had the discretion either to allow or not to allow costs. Matter of State of New York, 152 A.D. 633, 637. It did allow them. It was not necessary to prescribe the amount of the costs, for, having been allowed, they are "at the rates allowed for similar services in * * * an appeal from a judgment taken in the same court." People ex rel. Bray v. Board of Supervisors of Ulster Co., 65 How. Pr. 327; Wood v. Excise Commissioners, 9 Misc. 507; Matter of Babcock, 86 A.D. 563, 566. The costs being the same as on an appeal from a judgment, the items of twenty dollars before argument and forty dollars for argument were properly allowed.
If a case had been made and served on the appeal to the Appellate Division, the item of twenty dollars therefor would have been proper. § 3251, subd. 3. But no case was made. True, the appellant had to print the record that was before the Appellate Term and doubtless had quite as much trouble as if he had made a case. But where no case is in fact made, this item cannot be allowed, although the labor involved was just the same. Matter of Clarke's Estate, 15 N.Y.S. 867, 868; Matter of Loper, 32 Misc. 534. Hence this item should not have been taxed by the clerk.
Ordered accordingly.