Gilroy v. Stampfer

The defendant served a notice of trial and subsequently had this action dismissed for want of prosecution. The clerk allowed the defendant, upon taxation of costs, fifteen dollars for costs after notice of trial. This item was disallowed by the Special Term, and from the order entered this appeal is taken. Neither party filed a note of issue. Under the circumstances the disallowance was proper. The defendant was only entitled to costs after notice of trial if he failed to file a note of issue. Code Civ. Pro., § 977.

Order affirmed, with costs.

Present: Fitzsimons, Ch. J.; Hascall and O’Dwyer, JJ.

Order affirmed, with costs.