Girbekian v. Costikyan

The defendant appeals from an order directing the cleric to tax a hill of costs.

The default apparently remains unopened, as no order opening it appears to have been entered. The clerk’s original refusal to tax the bill of costs was right, because this is an action in which the plaintiff cannot recover costs. It is now settled beyond dispute that the liability of a stockholder for the debts of a corporation is a liability resting on contract, and hence it is one of which the Municipal Court or the City Court had jurisdiction,* and it appears that the defendant was personally served within the county of Hew York. Under subdivision 5 of section 3228 of the Code of Civil Procedure, the plaintiff, the amount claimed and for which he could recover being under $250, could not recover costs in the Supreme Court. The direction of the court as to the opening of the default awarded “ costs of action,” and as under the section quoted there could be no costs of the action against the defendant, the clerk was justified in refusing to tax a bill of costs,, and the order directing him to do so was erroneous. The award was of costs as costs, and not of a definite sum, or of an amount equal to what the costs would have been if recoverable. Incidentally it may be noted that the hill of costs ordered to be taxed was erroneous in that it allowed twenty-five dollars for costs before notice of trial instead of fifteen dollars. TÍie action being one to enforce a contract liability, judgment could have been entered without application to the court. (Code Civ. Proc. §§ 420, 3251, subd. 1.)

The order appealed from must be reversed, with ten dollars costs and disbursements, and the motion denied.

Present — Ingraham, McLaughlin, Clarke, Houghton and Scott, JJ.

Order reversed, with ten dollars costs and disbursements, and motion denied.