
    Sender Feldmark, Appellant, v. Thomas W. Weissman and Simon Weissman, Respondents.
    (Supreme Court, Appellate Term,
    December, 1908.)
    Municipal Courts — Procedure — Costs — On dismissal for defect m process.
    Upon the dismissal of an action in the Municipal Court of the city of New-York because the summons was not returnable within the prescribed period after service thereof upon the defendants, costs may not be awarded to the defendants.
    Appeal by the plaintiff from a judgment in favor of the defendants rendered in the Municipal Court of the city of Few York, second district, borough of Manhattan, awarding costs to the defendants upon the dismissal of the summons and from an order denying motion to amend same.
    Adolph Cohen, for appellant.
    Abr. A. Joseph, for respondents.
   Ford, J.

This is an appeal from so much of a judgment of dismissal against plaintiff as awards costs to. the defendants and from an order denying plaintiff’s motion to modify the judgment by striking from it the provision awarding costs.

The summons as served was made returnable at a date more remote from the date of service than is provided by statute. The defendants appeared specially and procured the dismissal of the action. Judgment was thereupon entered for fifteen dollars costs against the plaintiff who contends that this judgment was unwarranted by law. I agree with him upon the ground that the Municipal Court Act makes no provision for costs under such circumstances.

The judgment should be modified -by striking out the provision for costs, and, as so modified, affirmed with ten dollars costs and disbursements to the appellant.

The appeal from the order should be dismissed without costs.

Giegerich and Hendrick, JJ., concur.

Appeal dismissed, without costs.  