
    The Bowery Bank of New York, Respondent, v. Max Hart and Frieda Hart, Appellants.
    
      Costs — dismissal for failure to prosecute action.
    
    Appeal from an order entered in the Hew York county clerk’s office on the 14th day of September, 1911, denying a motion for retaxation of costs.
   Clarke, J.:

This is an action in equity for the foreclosure of a mortgage. Issue was joined October, 1901; plaintiff had judgment February 17, 1902; upon appeal to this court Said judgment was reversed and a new trial ordered, with costs to abide the event, December 5, 1902. (77 App. Div. 121.) Plaintiff failed to proceed with the action, and by order of July 10, 1911, the Special Term granted amotion to dismiss upon the ground of want of prosecution, “with all taxable costs and disbursements to defendants to date, together with $10 costs of this motion. ” Thereupon defendants served a bill of costs and gave notice of taxation. The plaintiff did not appear, but the clerk disallowed fifteen dollars costs after notice of trial, thirty dollars trial fee, issue of fact, fifty dollars for five term fees. A motion for retaxation was denied by the Special Term and defendants appeal. The three items disallowed were taxed to the plaintiff when it got its judgment. Therefore, the propriety of the items as taxable was established. The defendants were allowed all taxable costs to date. They were, therefore, entitled to those items. The'order appealed from should be reversed and the clerk directed to allow the items stricken out and retax the bill accordingly, with ten dollars costs and disbursements. Ingraham, P. J., McLaughlin, Scott and Dowling, JJ., concurred. Order reversed, with ten dollars costs and disbursements, and clerk directed to retax bill as stated in opinion. Order to be settled on notice.  