#### The Consumers Park Brewing Company, Appellant, *v.*Ignatz Greenberger sued as “ Ignatz Greenbaum,” Respondent.

(Supreme Court, Appellate Term,

May, 1905.)

Municipal Court — Action in replevin — Return day of summons — No appearance for plaintiff — Dismissal — Judgment by default — Appeal.

Where upon the return day of a summons, issued in a replevin action brought in the Municipal Court of the city of New York, *399there was no appearance for plaintiff and the summons with proof of service not having been filed the day before, as provided by the Court Rules, defendant causes a copy of the summons and affidavit and undertaking with proof of service to be filed and the court indorses the papers “ dismissed *”*and signs the same, and the defendant subsequently obtains an order from the trial judge dismissing the action with costs to be taxed by the clerk of the court, etc., a judgment thereupon entered in favor of defendant for the costs was properly entered and the judgment being upon default was not appealable.

The order of dismissal merely carried into effect the judgment rendered upon the return day, and was not appealable.

Appeal by the plaintiff from a judgment rendered in favor of the defendant in the Municipal Court of the city of New York, fifth district, borough of Manhattan. •

_ Arthur J. Westermayr, for appellant.

Jacob Silverstein, for respondent.

Per Curiam.

This action was in replevin. The summons was issued January 31, 1905, returnable February 9, 1905. Upon the affidavit and undertaking required by statute the plaintiff obtained a writ of replevin and the marshal took possession of a certain liquor tax certificate thereunder. Upon the return day of the summons there was no appearance on the part of the plaintiff. The summons and proof of service thereof, not having been filed the day before the return day as provided by rule IV of the Rules of Practice adopted by the Board of Justices of the Municipal Court, the defendant caused a copy of the summons, affidavit and undertaking with proof of service thereof, and a written notice of appearance to be filed in accordance wijh the provisions of rule VIII of said rules, and the court below endorsed the papers with the word “ Dismissed ” and signed the same. No further steps appear to have been taken in the action, until Eeburary 15, 1905, when the defendants obtained an order from the trial judge which recited that “ said action is hereby dismissed with costs to- be taxed by the clerk of this court and it is further ordered that the plaintiff and *400the marshal who levied upon said certificate * * * be and they are hereby directed to forthwith return said property to the defendant.” Thereupon a judgment was entered on said 15th day of February, 1905, in favor of the defendant and against the plaintiff for twelve dollars and fifty cents costs. Attached to the return herein is a notice of appeal dated March 2, 1905, appealing from the judgment and order of February fifteenth aforesaid and also purporting to appeal from “ an order ” denying a motion to open plaintiff’s default and set aside the judgment “made Feb. 28, 1905.” The return shows, however, that a motion to open plaintiff’s . default and to vacate and set aside the judgment aforesaid, was heard February twenty-seventh and an order was entered denying such motion on March 15, 1905, which order eliminating costs therefrom was again entered March 30, 1905, but no order of February 28, 1905, appears in the record and the notice of appeal therefore brings up for review only the judgment and order of February 15, 1905.

We think this judgment was properly entered.

Section 248 of the Municipal Court Act provides that: “ Judgment that the action be dismissed with costs * * * shall be rendered * * * When he (plaintiff) fails to appear at the time specified in the summons or upon adjournment.” Subdivision 6, section 332, *supra,*provides that where the defendant “ recovers judgment on the non-appearance of the plaintiff, costs shall be awarded to the ■ defendant,” etc. Rule VIII *supra*also provides that if the original summons, etc., is not returned to- the office of the clerk, the court may endorse a dismissal of the action or proceeding upon the copy of such summons, etc., “ and award costs in proper cases.” The endorsement of dismissal was made and although such endorsement did not state “ with costs ” the imposition of costs followed as a matter of statutory right and the subsequent order and entry of the amount of costs were merely carrying into effect the judgment previously rendered upon the return day. Lyons v. Gavin, 43 Misc. Rep. 659; 88 N. Y. Supp. 252.

The judgment appealed from being one entered upon default is not appealable, Brown v. Bouse, 43 Misc. Rep. 12; *40186 N. Y. Supp. 240, nor is the order of February 15, 1905, one of those orders from which an appeal will lie. Leavitt v. Katzoff, 43 Misc. Rep. 26; 86 N. Y. Supp. 495.

Present: Scott, Trtjax, and Dowling, JJ.

Appeal dismissed with costs.