Metro. Sav. Bank v. Tuttle

• Decision Date: 25 May 1944
• Citation: 55 N.E.2d 852,293 N.Y. 26
• Parties: METROPOLITAN SAV. BANK v. TUTTLE et al.
• Court: New York Court of Appeals Court of Appeals

293 N.Y. 26

55 N.E.2d 852

METROPOLITAN SAV. BANK

v.TUTTLE et al.

Court of Appeals of New York.

May 25, 1944.

Appeal from Supreme Court, Appellate Division, First District.

Action by Metropolitan Savings Bank against Friend L. Tuttle, as executor of and trustee under the will of Angelo Ubriaco, deceased, and others, to foreclose a mortgage upon real property. From a judgment of the Supreme Court of Bronx County entered upon an order of the Appellate Division, 264 App.Div. 763, 35 N.Y.S.2d 762, which unanimously affirmed a judgment and order of Special Term of Bronx County (McGeehan, J.), in so far as appealed from, which denied an additional allowance of costs under s 1513 of the Civil Practice Act, the defendants appeal by permission of the Court of Appeals.

Judgments reversed and matter remitted to Special Term. Friend L. Tuttle and Wilfred H. Gillon, both of New York City, for appellants.

C. De Witt Rogers, of New York City, for respondent.

RIPPEY, Judge.

This action was brought to foreclose a mortgage upon real property. The appellants, parties defendant in that action, moved at Special Term to dismiss the complaint under rule 106 of the Rules of Civil Practice on the ground that the complaint, upon its face, was insufficient as a matter of law. That motion was granted with permission to serve a supplemental complaint. After service of the supplemental complaint, the same defendants moved on the same ground to dismiss that pleading, which motion was denied at Special Term. Thereupon an appeal was taken from that order denying that motion and the Appellate Division, 261 App.Div. 1058, 26 N.Y.S.2d 846, reversed the order, with $20 costs and disbursements, and granted the motion, with $10 costs, with certain relief to plaintiff which is not material here. Upon the remittitur of the Appellate Division on such reversal, filed in the office of the clerk of Bronx County on April 12, 1941, and upon affidavits, the defendants thereupon moved at Special Term for judgment upon the remittitur and for an additional allowance under section 1513 of the Civil Practice Act. An order was made at Special Term granting the motion upon the remittitur and dismissing the complaint and supplemental complaint on the merits without prejudice to the institution of a new action for the foreclosure of the mortgage but denying the application for an additional allowance on the ground that, since no answer or defense was interposed to the complaint and no trial of the issues raised by such a pleading was had in the action, the court was without power to impose additional costs, and a judgment was entered upon the order in the office of the clerk of Bronx County on July 9, 1941. Thereupon, the appellants took an appeal to the Appellate Division from so much of the aforesaid judgment and order as denied the application for additional costs and adjudged that the court was without power to grant an additional allowance. The judgment and order so far as appealed from were unanimously affirmed, with costs.

The granting or denial of additional costs under section 1513 of the Civil Practice Act is discretionary upon the merits in the lower courts (Taylor v. Root, 48 N.Y. 687) and such discretion, when exercised, is not reviewable in this court. Dudley v. Perkins, 235 N.Y. 448, 139 N.E. 570. By the form of the Appellate Division order and the judgment entered thereon,it must be presumed that the affirmance was based upon the ground that Special Term was without jurisdiction to grant an extra allowance and that the application tnerefor was denied for want of power.

Respondents urge here as the sole ground for affirmance of the judgment appealed from that the Appellate Division only had power under the provisions of rule 200 of the Rules of Civil Practice to pass upon a motion for an additional allowance since the Appellate Division reversed the order of Special Term denying the motion to dismiss the complaint and dismissed the complaint and thereby made a new and complete adjudication. That point is first made by the respondent in this court. Ordinarily we would not consider it for that reason. Since the case must be remitted for further proceedings, it seems advisable to pass upon the point. It was not made upon the motion for leave to appeal. We granted leave for the purpose of setting at rest the question of the power of Special Term to grant an additional allowance of costs in an action to foreclose a mortgage upon real property where no answer is interposed, where there is no trial of the issues raised by such a pleading, where there is no showing that the case is difficult and extraordinary and where the complaint is dismissed upon motion directed to the legal insufficiency of the complaint.

Respondent relies principally upon Kaumagraph Co. v. Stampagraph Co., 235 N.Y. 1, 138 N.E. 485, where it was held that in an action where issue had been joined by answer and a trial had been had and the Appellate Division had reversed the determination of the trial court and had made new findings and a new decree in accordance with the power vested in it by statute,...