Kaufman v. Cohn

The plaintiff has recovered a judgment for $17 5 damages and nineteen dollars and forty cents costs and allowances. We are agreed that the judgment for $175 damages is correct and should be affirmed, but we find no authority for the inclusion of fifteen dollars costs. The Municipal Court Act provides for the allowance of costs to the prevailing party “ if. he' shall have appeared by an attorney-at-láw who files a ’ verified pleading or a written notice of appearance.” While, in this case, the plaintiff appeared by attorney, the pleadings were oral, and the record shows no written appearance. The plaintiff’s "attorney claims in his brief that he submitted to the trial court a memorandum upon which his name and office and post-office address were indorsed, and that' this constituted a written notice of appearance under rule 2, subdivision D, *369of the Rules of the Municipal Court. Aside from the fact that the parties are bound by the record on appeal, and the record contains no such papers, and no such papers can, therefore, be relied upon to show the court’s jurisdiction to grant costs, I think his contention is without merit. The rule, providing merely that “ the indorsement of the name and address of the attorney on the summons, pleading or any other paper in an action or proceeding shall be deemed an appearance within the meaning of section 332 of the Municipal Court Act,” is merely an amplification or interpretation of that section in so far as it describes what is required to constitute a “ written notice of appearance.” It does not pretend, however, to go beyond this and to increase the jurisdiction of the Municipal Court by dispensing with the “ filing ” of such a notice as a prerequisite to the court’s jurisdiction. A memorandum handed to a judge, and not becoming part of the record of the case, cannot be said to be-filed.

Judgment should, therefore, be modified by striking out the allowance of fifteen dollars costs, and, as modified, affirmed, with costs to the respondent.

Present: Lehman, Page and Hotchkiss, JJ.

Judgment modified, and, as modified, affirmed, with costs to respondent.