Wilkins v. Kelly

In an action to compel defendant to convey to plaintiff an equal interest in certain real property, defendant appeals, as limited by his brief, from a judgment of the Supreme Court, Queens County, entered March 29, 1965 upon the court’s written decision after a nonjury trial, which directed him to convey to the plaintiff a one-half interest in said property. Judgment modified on the law by striking out its fourth decretal paragapk directing that plaintiff recover $353 costs as taxed. As so modified, judgment affirmed, with costs to the plaintiff, with leave to plaintiff to retax trial costs on five days’ notice to defendant to be served not later than 20 days after entry of the order hereon. No questions of fact have been considered. It does not appear that a valuation of the property necessary for fixing the additional allowance authorized by C-PLR 8302 (subds. [a], [b]) was ascertained by the court or fixed by its deei*1012sion (CPLR 8401). Plaintiff’s bill of costs should be relaxed on notice in order that a proper valuation for fixing the additional allowance may be ascertained. Beldoek, P. J., Ughetta, Brennan, Rabin and Hopkins, JJ., concur.