Opinion
October, 1915.
Present — Ingraham, P.J., McLaughlin, Laughlin, Clarke and Scott, JJ.
The question as to the amount of damages having been submitted to the Special Term, that court found that the defendant had sustained damages to the amount of the undertaking. The court deducted from that, however, the amount of taxable costs which had been paid by the plaintiffs to the defendant. Such a deduction seems to be entirely unwarranted. ( Brooks v. Racich Asbestos Mfg. Co., 137 App. Div. 280.) The order must, therefore, be modified by fixing the amount to be paid by the surety on the undertaking at the sum of $250, and as thus modified affirmed, with ten dollars costs and disbursements to the appellant.
Order modified as stated in opinion, and as modified affirmed, with ten dollars costs and disbursements to appellant. Order to be settled on notice.