Hyde v. Anderson
Appellate Division of the Supreme Court of the State of New York
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.
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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. Instead of making a conditional order that the' plaintiff might, discontinue on payment of costs, the court’s order was a discontinuance of the action…
1Opinion of the Court
Gaynor, J.:
The 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.
Order reversed with costs and disbursements, and motion, granted with costs.
Hirschberg, P. J., Woodward, Rich and Miller, JJ., concurred.
Order reversed, with ten dollars…
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