Piscopo v. Thirty Maple Parkway Realty Co.

Appeal from an order denying plaintiff’s motion to vacate a judgment for costs entered in an action brought by the plaintiff against the defendant Pichini and certain other individuals. Order reversed on the law, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs. Passing the question whether the court had the power to dismiss the complaint as to the defendant Pichini on the trial of the framed issues, the award of costs on such a dismissal rested in discretion. The action was an equitable action. The order entered in lieu of a decision dismissing the complaint awarded no costs; hence there was no authority for the taxation of costs or the entry of a judgment therefor. (Canavan v. Emze Cosmetic Shop, Inc., 256 App. Div. 1093; Sagona v. Montalbano, 228 id. 857.) Lazansky, P. J., Hagarty, Carswell, Taylor and Close, JJ., concur.