Opinion
October 18, 1937.
Order granting defendant's motion to dismiss the above-entitled action reversed on the law, without costs, and motion denied, without costs, unless, within ten days after service and entry of this order, defendant pay to the plaintiffs the further sum of $71.25; in which event the motion is granted, without costs, and the county clerk of the county of Kings is directed to cancel and discharge the lis pendens in the above-entitled action. In our opinion, the term "taxable costs" as used in section 1077-e of the Civil Practice Act includes the allowance provided for by subdivision 5 of section 1512 of the Civil Practice Act. This construction has obtained with respect to section 1081 of the Civil Practice Act. ( Moran v. Midville Realty o., 162 N.Y. Supp. 117 [not officially published]; affd. as to appeal by defendant [ Moran v. Pinchot], 176 App. Div. 807; Dot Mort Holding Corp. v. Zito, 241 id. 692.) The award of the allowance provided for under section 1513 of the Civil Practice Act rests in discretion ( Badger v. Johnston, 106 App. Div. 237; Poughkeepsie Savings Bank v. Herron, 256 N.Y. 339; Warren v. Warren, 203 id. 250) and we deny allowance thereunder on that ground, even if it may be assumed that the denial at Special Term was not an exercise of discretion. Hagarty, Adel and Taylor, JJ., concur; Carswell and Davis, JJ., dissent and vote to affirm.