Schwartz v. Durning

CourtNew York Town Court
Writing for the CourtRUSSELL G. PELTON
Citation104 Misc.2d 1018,429 N.Y.S.2d 834
PartiesFrank SCHWARTZ, Plaintiff, v. Bernard DURNING, Defendant.
Decision Date14 June 1977

Page 834

429 N.Y.S.2d 834
104 Misc.2d 1018
Frank SCHWARTZ, Plaintiff,
v.
Bernard DURNING, Defendant.
Town Court of Mamaroneck, Westchester County.
June 14, 1977.

Terence Dwyer for defendant.

Frank Schwartz, defendant pro se.

Page 835

DECISION

RUSSELL G. PELTON, Justice.

After trial duly held, and presentation of testimony and other evidence, this Court rendered a decision awarding damages to plaintiff and awarding statutory costs under the Uniform Justice Court Act.

Defendant now calls to the attention of the Court Section 1902 of the Uniform Justice Court Act which states that a party shall be allowed costs only "if he has appeared by attorney." In this case the plaintiff appeared pro se. Defendant was represented by an attorney (for the carrier).

One of the advantages of the system of our Town Justice Courts in New York State is that people may appear in Court pro se whether it be a small claims or other part.

The Court had been unable to obtain from legislative history an explanation of the reasons for the addition to Section 1902 of the phrase "if he has appeared by attorney." A review of the relationship, if any, of attorney's fees to court costs would appear to be in order.

In early English common law (year 1200) the winning litigant recovered no costs of any kind from the loser. In 1275 the Statute of Gloucester permitted the plaintiff to recover costs in certain types of actions, and by 1607 also the defendants could recover costs as a prevailing party. Under English practice today costs may be awarded at the discretion of the Judge to include fees paid to counsel and witnesses, among other expenses.

This practice has not been accepted as a common law rule in this country. Here costs may be awarded where permitted by statute. In 1848 the New York legislators refused to fix attorneys' fees by statute (as they were in England to a large extent), but costs other than attorneys' fees have been provided for in the Code.

It is fundamental today that costs awarded in an action normally are separate and distinct from award of attorney's fees. In civil actions there may be an award to the prevailing party for certain statutory Court and related costs; CPLR Articles 82 and 83. In Section 1901 of the Uniform Justice Court Act there is the statutory provision that $5 costs may be awarded for each $100 or part thereof awarded as damages up to a maximum of $50.

Attorney's fees on the other hand are not ordinarily recoverable as costs....

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1 practice notes
  • Global Tech. Inc. v. Royal Bank of Canada, 150151/2011
    • United States
    • United States State Supreme Court (New York)
    • January 11, 2012
    ...and related costs (CPLR arts 82, 83). . .Attorney's fees on the other hand are not ordinarily recoverable as costs."(Schwartz v Durning, 104 Misc 2d 1018, 1019 [Town Ct, Westchester County 1977][collecting cases]; Hayman v Morris, 37 NYS 2d 884, 891 [Sup Ct, NY County 1942]["It is generally......
1 cases
  • Global Tech. Inc. v. Royal Bank of Canada, 150151/2011
    • United States
    • United States State Supreme Court (New York)
    • January 11, 2012
    ...and related costs (CPLR arts 82, 83). . .Attorney's fees on the other hand are not ordinarily recoverable as costs."(Schwartz v Durning, 104 Misc 2d 1018, 1019 [Town Ct, Westchester County 1977][collecting cases]; Hayman v Morris, 37 NYS 2d 884, 891 [Sup Ct, NY County 1942]["It is generally......

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