Opinion
November 7, 1951.
Appeal from Supreme Court in the First Judicial Department.
The City Court granted a motion by plaintiff for summary judgment. On appeal the Appellate Term affirmed "with $10.00 costs". The clerk of the City Court nevertheless taxed costs on the basis of $20 before argument and $40 after argument of the appeal for a total of $60 costs under section 1508 of the Civil Practice Act.
Upon a review of this taxation at a Special Term of the City Court a reduction of the costs as taxed was denied. The Appellate Term, by a divided court, reversed the order of the City Court denying retaxation and limited the costs to $10 by the order appealed from.
We are inclined to agree with the action of the clerk. The amount of costs in this instance is statutory, and the statute must be followed. Section 1490 of the Civil Practice Act, as amended in 1943 (L. 1943, ch. 452), permitted the appellate court in its discretion to affirm or reverse, without costs. But where the appellate court allows costs, it would seem that no discretion is permitted as to the amount. Costs, if granted, are required to be in the amount prescribed by section 1508. No distinction is made in this regard between an appeal from a judgment entered after trial and one entered on motion for summary judgment.
The order of the Appellate Term should be reversed, with $20 costs and disbursements, and the order of the City Court denying the motion for retaxation should be affirmed.
Peck, P.J., Glennon, Dore, Cohn and Callahan, JJ., concur.
Order unanimously reversed, with $20 costs and disbursements to the appellant, and the order of the City Court affirmed.