
    Cassel Cohen, Respondent, v. Michele Melle, Appellant.
    (Supreme Court, Appellate Term,
    February, 1904.)
    Municipal Court of the city of New York — Costs to the tenant on the landlord’s voluntary discontinuance of summary proceedings.
    Where a landlord voluntarily discontinues, before final submission, summary proceedings taken by him in the Municipal Court of the city of New York since the passage of L. 1902, eh. 580, the tenant is entitled as costs to his actual disbursements to the extent of ten dollars besides the fees of any witnesses attending from another county and this under Code Civ. Pro., § 3070, subd. 2. -
    Appeal by the tenant from an order, made herein September 14, 1903, disallowing the disbursements as costs in summary proceedings brought against him in the Municipal Court of the city of New York, to recover possession of real estate, and from so much of a final order made herein September 15, 1903, as fails to award him his actual disbursements after a discontinuance of the proceedings by the landlord before final submission.
    Palmieri & Weehler, for appellant.
    Steuer & Hoffman (Max D. .Steuer, of counsel), for respondent.
   Davis, J.

The plaintiff began this proceeding in August, 1903, to recover possession of certain portions of the premises numbers 332 and 336 East Fifteenth street, New York city, on the ground that the tenant was holding over beyond his term without permission of the landlord.

After the disagreement of the jury at a trial had August 11, 1903, the case was set down to be retried on August twenty-fifth following. On the latter date the proceeding was discontinued on the application of the landlord, the justice awarding fifteen dollars costs to the tenant. The precept bears an indorsement to that effect. The amount allowed as costs consisted solely of disbursements for jury fees and witnesses’ fees. Subsequently and on August 26,1903, the landlord obtained an order requiring the tenant to show cause why this sum of fifteen dollars, awarded upon the discontinuance, should not be disallowed, the landlord claiming that there was no legal authority for awarding costs in proceedings of this nature in the Municipal Court. The hearing upon the order to show cause resulted in an order made September 14, 1903, partly as follows: “ Ordered, that the sum of fifteen dollars disbursements allowed herein upon the discontinuance of this proceeding'be, and the same is, hereby disallowed.” On September 15, 1903, a final order was made as follows: “ The above named landlord having applied to the court for discontinuance in the above entitled proceeding before final submission, now on motion of attorneys for the landlord, It is Ordered and Adjudged that the above entitled proceeding be and the same hereby is dismissed without prejudice for a new proceeding and without any costs or disbursements to the tenant herein.” From the order of September 14, 1903, and from so much of the final order of September 15, 1903, as fails to award him his actual disbursements in the proceeding the tenant has appealed.

The specific ground upon which the justice refused to allow the defendant his disbursements as costs was that in his opinion there was no provision of law authorizing any costs on the discontinuance of summary proceedings brought in the Municipal Court of the city of New York.

On this point I differ with the learned justice. The jurisdiction of the Municipal Court in summary proceedings is based on section 1, subdivision 12, of the Municipal Court Act. Laws of 1902, chap. 580. Under this provision jurisdiction is conferred in: “A summary proceeding under title two of chapter seventeen of the code of civil procedure to recover possession of real property which, or a portion of which, is situated within the district wherein the application for such recovery is made.”

Other than the above enactment there is no provision of the Municipal Court Act under which costs may be allowed in summary proceedings. Referring now to the Code sections thus incorporated into the Municipal Court Act we find that title 2 has to do with “ Summary proceedings to recover the possession of real property,” and furnishes a complete system of procedure. Under section 2249 the final order in the proceedings must award costs to the prevailing party, and section 2250 provides that these costs “ must be at the rate allowed by law in an action in a justice’s court, and are limited in like manner.” Costs in an action in a justice’s court are governed by sections 3074 to 3081, inclusive. Section 3074 awards costs to the prevailing party and defines costs as consisting “ of the fees, allowed by law, for services necessarily rendered in the action, at the request of the party entitled to costs, or paid by him, as prescribed by law; and of such other expenses, as the party is entitled to include in his costs, by express provision of law.” Then section 3076 limits the amount of costs in certain cases mentioned to fifteen dollars, besides witnesses’ fees, and in all other cases to ten dollars, besides fees of witnesses attending from another county. § 3076, subd. 2. Under section 3178 the justice must specify in his docket-book the items of costs allowed by him, and the party must show on oath that the item was actually and legally paid or incurred. The significance of this last section is that it shows that costs in a justice’s court consist only of disbursements for fees and expenses. These remarks, of course, have no reference to costs on appeal which are provided for in another title.

It follows from these considerations that the prevailing party is entitled to certain amounts as costs in summary proceedings in the Municipal Court. Those costs, however, consist only of disbursements actually made or expenses actually incurred, and may not exceed fifteen dollars and witnesses’ fees in certain cases (Code Civ. Pro., § 3076, subd. 1), and in all other eases they are limited to ten dollars besides fees of witnesses from out of the county. Code Civ. Pro., § 3076, subd. 2.

In the case at bar the landlord voluntarily discontinued his proceeding before final submission, and an order in the nature of a final order was made dismissing the proceeding, without prejudice to a new proceeding. The tenant was the prevailing party, and, as such, was entitled to the costs of the special proceeding. Code Civ. Pro., § 2249. The discontinuance of a summary proceeding in a Municipal Court is similar in effect to the discontinuance of an action in a justice’s court. In the one case there must be a final order awarding costs limited in the manner referred to above, and in the other there must be a judgment of nonsuit, with costs. Code Civ. Pro., § 3013.

Therefore, in view of the fact that the Code provisions referred to above allow costs in summary proceedings at the rate allowed by law in an action in justice’s courts,” with like limitations (Code Civ. Pro., § 2250), and in view of the further fact that these Code provisions have been incorporated in the Municipal Court Act (§ 1, subd. 12), I am of opinion that the tenant was entitled to receive his actual disbursements to the extent of ten dollars, besides the fees of witnesses coming from out of the county, if any, as provided in subdivision 2 of section 3076 of the Code of Civil Procedure.

Under the circumstances I think that the order of September 14, 1903, disallowing the fifteen dollars as costs, should be reversed, and that the final order made on September 15, 1903, by which the proceeding was dismissed, should be modified so as to award the tenant as costs his actual disbursements, not exceeding ten dollars, besides the fees of witnesses, if any, coming from out the county, and as so modified the order should be affirmed, with costs to the appellant.

Fbeedmau, P. J., and MacLean, J., concur.

Order of September 14, 1903, disallowing fifteen dollars as costs, reversed and final order made September 15, 1903, by which proceeding was dismissed, modified so as to award the tenant as costs his actual disbursements, not exceeding ten dollars, besides witnesses’ fees, if any, of witnesses coming from out the county, and as so modified affirmed, with costs to appellant.  