
    Clara M. Cramer, Respondent, v. Melanchthon W. Perine and Another, Appellants.
    
      Costs — Court of Appeals — costs on argument not allowed where Court of Appeals declined to hear case and later appeal was dismissed for failure to prosecute.
    
    Appeal from an order of the Supreme Court, made at the Erie Special Term and entered m the Brie county clerk’s office in January, 1925.
   Per Curiam:

The appeal was never argued in the Court of Appeals. When the case was reached for argument in that court, the judges declined to hear it. No suggestion was then made by the defendant that the appeal should be dismissed. The parties evidently contemplated a continuance of the appeal with an argument at a later day. Several months afterwards the plaintiff made a motion, not in connection with a hearing or argument, to dismiss the appeal for failure to prosecute and upon this motion the appeal was dismissed, with costs and ten dollars costs of the motion. Under these circumstances we are of the opinion that the item for argument in the Court of Appeals was improperly included in the bill of costs. (Matter of Wray Drug Co., 93 App. Div. 456.) All concur. Present — Hubbs, P. J., Clark, Davis, Sears and Crouch, JJ. Order modified by inserting a provision that the item in the bill of costs, “ Appeal to Court of Appeals for argument, $60,” be disallowed, and as so modified the order is affirmed, with ten dollars costs and disbursements to the appellant. Motion to receive the affidavit of J. Neil Mahoney, verified January 5, 1925, and of Clark H. Timerman, verified January 5, 1925, denied.  