Butler Bros. v. Silberstein

The complaint was properly dismissed at close of plaintiff’s case for failure of proof, but the dismissal should have been a nonsuit without prejudice to a new action, and "not upon the merits. Sections 248, 249, Municipal Court Act (Laws 1902, p. 1561, c. 580).

Costs were erroneously allowed the defendant, and should be eliminated from the judgment. The Municipal Court act in section 332 provides that costs shall be allowed the prevailing party “if he shall have appeared by attorney at law who- files a verified pleading or a written notice of appearance.” There was neither a verified pleading nor a written notice of appearance filed by the defendant’s attorney, and the costs should be eliminated. Pickhardt v. Pratt, 55 Misc. Rep. 231, 235, 105 N. Y. Supp. 236.

Judgment modified, as above indicated, and, as thus modified, affirmed, without costs in this court.