Weinberg v. Graf

Prince, J. A motion was made by the defendant to dismiss the action on the ground that there was another action pending for the same cause between the same parties. This motion was granted. The action being in the sum of $750 for personal injuries, the clerk taxed the costs pursuant to section 164 of the Municipal Court Code. The plaintiff now moves to retax the costs, contending that the statute awards no costs to the defendant on a motion of this nature other than the discretionary costs provided by section 167 of the Municipal Court Code. In the case of Arcadia Hosiery Co. v. Fine (135 Misc. 663) the justice writing the opinion, and the cases therein cited, held that a judgment rendered pursuant to a motion made under rule 113 of the Rules of Civil Practice involves a trial in so far as costs are concerned, and brings the proposition within the purview of section 164 of the Municipal Court Code. I cannot differentiate between a motion made under rale 113 and any other motion which disposes of the action. I am constrained, in following this decision, to hold that a motion made, as in this case, to dismiss the complaint, is equivalent to a trial, and requires the payment of a full bill of costs, as is provided by section 164. Since the decision on February 1, 1930, in the case of Arcadia Hosiery Co. v. Fine, an amendment of section 164 was made by the Legislature (Laws of 1930, chap. 432), to become effective September 1, 1930. The amendment, known as subdivision 3-a, in substance allows the plaintiff one-half of the costs prescribed in subdivision 1 of this section where he recovers judgment on motion. Since the Legislature has given no relief to the defendant in similar cases, I must adhere to the rule which, in my opinion, entitles the defendant to a full bill of costs. Motion denied.