
    Simon J. Lapof, Respondent, v. Joseph Rigerman, Appellant.
    Supreme Court, Appellate Term, First Department,
    February 5, 1926.
    Municipal Court of City of New York — costs — dismissal of complaint for lack of jurisdiction is trial within meaning of Municipal Court Code, § 164, subd. 7 — error for trial court to strike out items covering costs provided for in said subdivision.
    The dismissal of a complaint in an action in the Municipal Court of the City of New York for lack of jurisdiction is a trial within the meaning of subdivision 7 of section 164 of the Municipal Court Code, and the costs provided for .therein follow as a matter of law; therefore, it was error for the trial court to strike from defendant’s judgment an item covering costs predicated on the amount recited in the summons.
    
      Appeal from an order granting plaintiff's motion for the retaxation of costs to the extent that the costs taxed be stricken from the judgment on the ground that the court had no jurisdiction to grant such costs.
    
      Isidor Tow, for the appellant.
    
      Benjamin Koenigsberg, for the respondent.
   Delehanty, J.

The action was brought to take and state an account. On the trial the complaint was dismissed on the ground that the court had no jurisdiction of the subject-matter. The costs were taxed at sixty-five dollars based on the amount set forth in the summons. That a court has the power to award' costs where the action is dismissed for lack of jurisdiction is beyond question. (Day v. Sun Insurance Office, 40 App. Div. 305; affd., on opinion below, 167 N. Y. 543; Seacoast Trust Co. v. Mugman, 184 App. Div. 895.)

A dismissal of the case at the trial for lack of jurisdiction was a trial within the purview of subdivision 7 of section 164 of the New York City Municipal Court Code and the statutory costs therein provided followed as matter of course. The court below, therefore, erred in striking out the costs as fixed in the judgment.

The order should be reversed and the motion denied, with ten dollars costs.

Order reversed, with ten dollars costs and motion denied.

All concur; present, Bijur, Delehanty and Wagner, JJ.  