
    William Dooley, Plaintiff, v. The Union Railway Company, Defendant.
    (Supreme Court, New York Special Term,
    December, 1907.)
    Costs — Costs on appeal — Eight to costs and authority to award — Decision as affecting right to costs — Dismissal.
    Where an appeal from' a judgment comes on for argument in the Court of Appeals and is dismissed with costs upon the argument, the respondent is entitled to tax costs before and after notice of argument.
    Motion for a retaxation of costs.
    Fromme Brothers, for motion.
    James L. Quackenbush, opposed.
   Giegerich, J.

The appellant seeks by this motion for a retaxation of costs, for a disallowance of the items before and after notice of argument, which items were taxed by the clerk. The appeal from the judgment was dismissed by the Court of Appeals on the ground that it was not appealable, and the appellant insists that the respondent is not entitled to the said items because there was actually no argument of the appeal.’7' The remittitur, however, states that the cause came on for argument, and that after due deliberation the appeal in question was dismissed, with costs, and the affidavit, used upon the taxation, shows that the dismissal took place upon the argument. Since the appeal was not dismissed upon notice previously given, but only after it wás called in its regular order on the calendar, the clerk properly taxed the items objected to. Winchester v. Jackson, 7 U. S. 514; 9 Abb. Pr. (N. S.) 455, note; Kanouse v. Martin, 4 N. Y. Super. Ct. 739; Matter of Wray Drug Co., 93 App. Div. 456.

Motion denied.  