
    (51 Misc. 643)(113 App. Div. 912)
    CULLINAN, Excise Com’r, v. FEDERAL UNION SURETY CO.
    (Supreme Court, Appellate Division, Second Department.
    June 8, 1906.)
    1. Costs—Recovery by Plaintiff—Costs of Counsel—Action on Liquor Dealer’s Bond.
    An action by the excise commisioner on a liquor dealer’s bond is one on a contract obligation, and not to recover a penalty or forfeiture, and hence plaintiff on recovery by him is entitled to costs of counsel under Code Civ. Proc. § 3228, subd. 4, relating to costs in an action to recover a sum of money, and not to recover a penally or forfeiture.
    [Ed. Note.—For cases in point, see vol. 13, Cent. Dig. Costs, §§ 26-35; vol. 29, Cent. Dig. Intoxicating Liquors, § 91.]
    2. Same—Witness—Fees.
    In an action on a liquor dealer’s bond by the excise commissioner, plaintiff may tax disbursements for witnesses and fees, though the witnesses were special excise agents.
    [Ed. Note.—For cases in point, see vol. 13, Cent. Dig. Costs, §§ 725, 730.]
    Action by Patrick W. Cullinan, as state commissioner of excise, against the Federal Union Surety ' Company. Order affirmed on opinion of the Special Term.
    The following is the opinion of Smith, J.:
    In the ease of Cullinan v. Burkard, 93 App. Div. 31, 86 N. Y. Supp. 1003, in an action upon a similar bond, the court decided that the action was upon a contract obligation, and not one to recover a penalty or forfeiture impressed by statute. The plaintiff is therefore entitled to recover cost of the action by force of provision of section 3228, subd. 4, of the Code of Civil Procedure. The affidavit presented to the clerk on presentation of witnesses, fees, and disbursements were sufficient to justify his taxation of such disbursements. I know of no reason why plaintiff should not be allowed to tax disbursements for witnesses and fees when the witnesses are special excise agents. See, also, Lyman ¡v. Young Men’s Cosmopolitan Club, etc., 38 App. Div. 220, 56 N. Y. Supp. 712. Motion denied, with $10 costs.
    Argued before JENKS, HOOKER, GAYNOR, RICH, and MILLER, JJ.
    Chas. MacKenzie, for appellant.
    Herman J. Kellogg, for respondent.
   PER CURIAM.

Order affirmed, with $10 costs and disbursements, on the opinion of Mr. Justice Wilmot M. Smith at Special Term.  