Opinion
December 28, 1939.
Appeal from the Municipal Court of the City of New York, Borough of Manhattan, Third District.
James A. Hughes, for the appellant.
Leo E. Berson, for the respondent.
In this action to recover $1,000 damages the defendant, pursuant to order, impleaded defendant American Peroxide Company, and the supplemental summons and cross-complaint of the defendant demanded judgment against the impleaded defendant for such amount as plaintiff should recover against defendant.
Plaintiff recovered judgment against defendant for $150, and his costs were taxed in the sum of fifteen dollars; defendant's complaint against the impleaded defendant was dismissed.
The action having been brought by plaintiff to recover $1,000, and the statutory costs in the event of judgment for defendant upon such demand being sixty dollars, the court, on motion for a retaxation, awarded sixty dollars to the impleaded defendant.
The clerk's taxation of the impleaded defendant's costs at the sum of fifteen dollars was correct. No demand was made by plaintiff against the impleaded defendant; as a result of the supplemental summons and cross-complaint defendant's proceedings, in so far as the impleaded defendant is concerned, were in effect an action by defendant against the impleaded defendant to recover the amount of any judgment to be obtained by plaintiff against defendant in the action; and the impleaded defendant, upon dismissal of the cross-complaint, was entitled to recover from defendant fifteen dollars costs based upon the amount of plaintiff's recovery against defendant.
Amended judgment and order granting the motion of the impleaded defendant for a retaxation of costs reversed and motion denied, and original judgment upon the clerk's retaxation reinstated.
Appeal from order denying the cross-motion of the original defendant to strike out the fifteen dollars costs dismissed.
All concur. Present — HAMMER, SHIENTAG and NOONAN, JJ.