Opinion
April 24, 1956
Carl P. Goldstein for landlord.
George H. Rosen for tenant.
The final order herein dismissed the landlord's petition and provided that the tenant recover "costs in the sum of $15.00 and $1.25 disbursements". Landlord now moves to strike from the judgment entered said item of costs in the sum of $15.
An award of costs to the successful party in summary proceedings is mandatory (Civ. Prac. Act, § 1430; Cunningham v. Hragvil, 90 N.Y.S.2d 164). Excepting where the application is founded upon an allegation of forcible entry or forcible holding out, costs to such a successful party "must be at the rate allowed by law in an action in a justice's court, and are limited in like manner" (Civ. Prac. Act, § 1431).
With the exceptions above noted, costs to such a successful party in a summary proceeding consist only of the items of expenses for fees and other disbursements actually and legally paid or incurred, not to exceed $15, and the fees of witnesses, if any, attending from another county (Justice Court Act, §§ 314, 317, 321; Mt. Hope Holding Corp. v. Tober, 136 Misc. 826; 211-213 West 29th St. Co. v. Gorstein, 139 Misc. 238; Cohen v. Melle, 43 Misc. 79; Lauria v. Capobianco, 39 Misc. 441; Springer v. Schlegel, 189 N.Y.S. 15; K.T.W. Realty Corp. v. Nussbaum, 138 Misc. 741; Matter of 609 Holding Corp v. Burke, 202 Misc. 709, 714, affd. 281 App. Div. 678).
Subdivision 2 of section 317 of the Justice Court Act (derived from Code Civ. Pro., § 3076) does not provide for an arbitrary allowance of $15 as costs besides the fees of witnesses attending from another county, but sets forth a maximum limitation on the amount of expenses to be allowed as costs ( Matter of Ross, 107 Misc. 726, 727, affd. 188 App. Div. 904); and allowable costs in summary proceedings are strictly regulated ( Matter of Muck, 125 N.Y.S.2d 415, 419).
While statutory costs are a matter of right, authority for an item claimed must be found in the statute ( Friedman v. Borchardt, 161 App. Div. 672, 674, appeal dismissed 214 N.Y. 711), and there is no statutory authority for the item in dispute here.
Motion granted. Submit order.