Dot Mort Holding Corp. v. Zito

Order granting respondent’s motion to cancel Ks pendens and discontinue the action modified by providing that the same is granted upon the payment by respondent of the principal of the lien with five per cent interest from February 15, 1933, and the costs and disbursements in the action, and as thus modified affirmed, with ten dollars costs and disbursements to the appellant. In the absence of circumstances warranting a denial of costs, which element is not present here, a plaintiff in an action for the foreclosure of a lien is entitled to costs on the discontinuance of the same at the instance of a junior lienor. (Tuthill v. Morris, 81 N. Y. 94, 99, 100; Harvey v. Mooney, 168 App. Div. 169; Moran v. Pinchot, 176 id. 807; Kadin v. Samuels, 55 Misc. 442; Lewis v. Robinson, 78 App. Div. 579; Pratt v. Ramsdell, 16 How. [693] Pr. 59, 62; Greater New York Charter, §§ 1035, 1038.) Young, Kapper, Hagarty, CarsweE and Davis, JJ., concur. Settle order on notice.