
    Herbert E. Rosenberg, Respondent, v. Julian Nieweroski and Sophie Nieweroski, Appellants.
    Supreme Court, Appellate Term, First Department,
    April 3, 1940.
    
      Charles S. Liss, for the appellants.
    
      Herbert E. Rosenberg, for the respondent.
   Per Curiam.

Although an attorney who appears in that capacity for himself as a party is ordinarily entitled to costs, plaintiff here is not. By subscription to the summons and complaint and moving upon the ground sworn in his affidavit that he appeared in person and not as an attorney, and accepting the benefits of the order granting him the relief sought under section. 95 of the Municipal Court Code, he elected to sue and appear as a lay person. In Rathkopf v. Coussa (233 App. Div. 86) plaintiffs appeared in person, but subscribed themselves as Attorneys for plaintiffs,” served their own notice of trial and conducted all stages of the litigation as attorneys. There it was held the case was not within the provisions of section 95 of the Municipal Court Code. The recovery is also excessive. Unpaid services were worth not more than $250.

Judgment reversed and new trial ordered, with thirty dollars costs to appellants to abide the event, unless plaintiff within ten days after service of order entered hereon stipulates to reduce the judgment as entered to $250, in which event judgment as so modified affirmed, without costs.

Appeal from orders dismissed.

McCook and Hammer, JJ., concur; Miller, J., dissents.  