Kravitz v. Levy

Judgment modified by eliminating costs, and as so modified unanimously affirmed, without costs. We are of opinion that in this action to foreclose a mechanic’s lien against real property, brought in the Supreme Court, Kings county, the plaintiff is not entitled to costs, since the action could have been brought in the City Court of the City of New York. (Civ. Prac. Act, § 1474.) While it is true that section 53 of the Lien Law provides that costs and disbursements shall rest in the discretion of the court and may be awarded to the prevailing party, this does not apply to cases in which the law withholds costs from the prevailing party. The conclusion of law is modified by striking therefrom the provisions for costs. Present — Lazansky, P. J., Young, Hagarty, Carswell and Tompkins, JJ.