
    Henry F. Poggenberg, Respondent, v. Liubomir R. Mestaniz, Appellant.
    (Supreme Court, Appellate Term,
    December, 1904.)
    Costs of appeal to Appellate Term not taxable when cause not brought to hearing.
    Costs of an appeal to the Appellate Term cannot be taxed on an order dismissing an appeal from the Municipal Court of New York for failure to cause the return to be filed. Section 345 of the Municipal Court Act forbids costs to either party if the appeal be dismissed because neither party brings it to a hearing.
    Appeal by the defendant from a judgment of the Municipal Court of the city of Hew York, eleventh district, borough of Manhattan, in favor of the plaintiff.
    Bernard H. Arnold, for appellant.
    Dudley R. Horton, for respondent.
   Gildersleeve, J.

An appeal having been taken herein from a judgment rendered in the Municipal Court, in favor of the plaintiff, the plaintiff-respondent moved in this court to dismiss the appeal on the ground that the defendant had failed to cause the return to be filed and bringing the appeal to a hearing.

The order entered upon the decision of the motion provided as follows: “ Ordered that said motion to dismiss the appeal herein be granted with ten ($10) dollars costs to the respondent, unless the appellant pays the ten ($10) dollars costs to the respondent and causes the return to be filed with the clerk of this court within ten days from the service of a copy of this order with notice of entry thereof and stipulates to' argue the appeal upon the judgment herein at the March term of this court.” The terms of this order were not complied with and the plaintiff-respondent thereupon procured an ex parte order dismissing the appeal with costs.” In the bill of costs the clerk taxed twenty-five dollars for “Appeal to Appellate Term,” and the taxation was confirmed by the justice of the Municipal Court. The defendant appeals from so much of the judgment as awards the plaintiff twenty-five dollars costs.

Section 345 of the Municipal Court Act provides as follows : “ 1. If the appeal is dismissed because neither party brings it to a hearing, as prescribed by law, costs shall not be awarded to either party.” The appeal, as we have seen, was never brought to a hearing, and the respondent never became entitled to other than the ten dollars costs of motion, and disbursements on dismissal of the appeal. Had the ex parte order, entered after failure of the defendant to perfect the appeal provided for the payment of ten dollars costs, instead of stating “ with costs ” it is probable that the error in taxation would never have occurred.

The judgment herein for thirty-eight dollars and forty cents should be modified by deducting therefrom the item of twenty-five dollars, and as thus modified, affirmed, with ten dollars costs of this appeal to the appellant.

Freedman, P. J., and MacLean, J., concur.

Judgment for thirty-eight dollars and forty cents modified by deducting therefrom item of twenty-five dollars, and as modified affirmed, with ten dollars costs of this appeal to appellant.  