Lampy v. Freedman

Seabury, J. The plaintiff sued for the value of a garment delivered to the defendant and which the defendant did not return. ‘ The plaintiff claimed that this garment was delivered between the 15th and the 22d days of February, 1908. The defendant claimed that the plaintiff delivered the garment to him on November 27, 1907, and that, on December 5, 1907, his place of business was burglarized and the garment in question stolen. The plaintiff was corroborated by her husband and a disinterested witness. The defendant was not corroborated. The decision of the trial justice in favor of the plaintiff should not be disturbed. The defendant also insists that that part of the judgment awarding costs to the plaintiff was unauthorized, and claims that, as the plaintiff sued in forma pauperis and counsel was not designated by the court, the taxation of costs in favor of the plaintiff was unauthorized. The right to costs which is given to litigants by statute is a substantial one (Sturgis v. Spofford, 58 N. Y. 103); and, in the absence of a statute withdrawing such rights from litigants suing in forma pauperis, the usual costs are recoverable. 11 Cyc. 204. In a case of this character, the court is not obliged to assign counsel, but under section 470 of the Municipal Court Act may do so. Section 53 of the Municipal Court Act provides for the distribution of costs awarded in favor of a person who prosecutes or defends as a poor person when collected, but this section does not deprive the poor person of the right to recover costs where no attorney has been assigned to prosecute or defend on her behalf. Judgment affirmed, with costs. Gildersleeve, J., concurs.