Elliott v. Vermilyea

Hascall, J. This is an appeal from an order of the Special Term, made September 21, 1898, granting discontinuance of the action, upon plaintiff’s motion, with $10 costs to the plaintiff’s attorneys. The respondent contends that this is “ an appeal from an order allowing costs of motion,” and therefore not appealable, under the cases of Lennox v. Eldred, 65 Barb. 526, and others. We do not agree with him. We think that the order was inadvertently signed, as it is not usual, and, certainly in this case, not proper to nharge defendant with the costs of granting a favor to plaintiff. Moreover the order reads “ with ten dollars ($10) costs to the plaintiff’s attorneys,” and this makes it still more evident that the order was prepared by attorneys for presentation for signature in the hurry of chambers’ business, as costs are awarded to a party and not to the attorney. Ordinarily, if imposed at all, motion costs are awarded against the plaintiff, who desires to retire his suit, and are to compensate defendant for being needlessly taken into court. In the case at bar, it is apparent that the order under criticism is too harsh and arbitrary to be within sound discretion. Fleischman v. Fleischman, 61 N. Y. St. Repr. 627. The order appealed from is modified by striking out the provision therein giving the plaintiff “ costs against the defendant to be paid to the plaintiff’s attorneys,” and by inserting in lieu thereof, $10 costs of motion to defendant, and, as so modified, affirmed, with $10 costs of this appeal beside disbursements for printing, to be taxed. Eitzsimons, Oh. J., concurs. Order modified, and as modified, affirmed, with $10 costs.