
    Ephriam Benjamin and Israel W. Benjamin, copartners, trading as Benjamin Brothers, Respondents, v. Daniel J. Brownstein, Philip A. Newmark and Henry W. Louis, Individually and as Copartners, Trading as Brownstein, Newmark & Louis, Respondents.
    (Supreme Court, Appellate Term, First Department,
    January, 1913.)
    City Court of city of New York — motion — costs.
    Where by oversight an order affirming an order of the City Court of the city of New York granting a new trial on the ground of newly discovered evidence does not grant the costs of the motion and disbursements, the proper practice is to move for a resettlement of the order.
    An order of the City Court of the city of New York, denying defendant’s motion to strike from plaintiff’s bill of costs, taxed after the entry of the order of affirmance of the order for a new trial, items of twenty dollars before argument, forty dollars for argument, and forty-eight dollars and thirty-eight cents for disbursements, must be reversed with ten dollars costs and disbursements.
    Appeal by the defendants from an order of the City Court of the city of New York denying a motion to strike out certain items from a bill of costs taxed by plaintiffs.
    David Bernstein, for appellants.
    Morris & Samuel Meyers, for respondents.
   Per Curiam:

Upon an appeal to this court from an order made at a Special Term of the City Court granting or denying a motion for a new trial upon the ground of newly discovered evidence, only ten dollars costs and disbursements are allowable. Brennan v. Joline, 70 Misc. Rep. 537. Disbursements are not taxable unless so specified in the order. Wilson v. Lange, 84 N. Y. Supp. 519. The omission in the order of this court to grant the plaintiffs ten dollars costs and disbursements, upon the affirmance of the order granting a new trial in the City Court upon the ground of newly discovered evidence, was evidently an oversight, and the plaintiffs should have applied for a re-settlement of the order. Unless the defendants will stipulate that the plaintiffs may tax ten dollars costs and their disbursements, a motion to re-settle the order will be entertained. As the case now stands, however, the order appealed from must be reversed with ten dollars costs and disbursements, and the item of twenty dollars before argument, forty dollars for argument and forty-eight dollars and thirty-eight cents disbursements, stricken from the bill of costs allowed in the lower court as appeal costs, etc.

Present: Seabuky, Lehman and Page, JJ.

Order reversed with ten dollars costs and disbursements, and motion granted.  