Pennsylvania Exchange Bank v. Lasko , 9 Misc. 2d 384 ( 1958 )

Matthew M. Levy, J.

Contrary to hope and expectation (when I signed the order to show cause requesting reargument) the parties have given me no decisional aid. The operative facts are these:

Plaintiff’s complaint was dismissed on defendant’s motion for judgment on the pleadings. Costs were required to be paid by plaintiff to defendant for leave to replead. Plaintiff did not appeal, but served an amended complaint, paying the costs imposed. The second complaint was dismissed for insufficiency on defendant’s motion; This time plaintiff appealed. The second order was reversed, with costs to plaintiff. In the opinion of the Appellate Division (4 A D 2d 206) it seems to be indicated by way of obiter that the first complaint was good. Defendant paid plaintiff the costs of appeal and plaintiff now seeks (by way of reargument of the first motion) to recover back the costs paid by it for leave to replead.

The application for reargument is denied, for several reasons.

(1) Plaintiff paid nothing by the second order of dismissal. There is nothing to restore by virtue of that second order, which order plaintiff did not accept. Payment was made by virtue of the first order, which plaintiff did accept. If plaintiff believed itself aggrieved, proper procedure required it to appeal from the original disposition instead of electing to serve an amended complaint.

(2) The motion sought to be reargued has been rendered academic by reason of plaintiff’s election to serve an amended complaint. Reargument should not be granted merely to recover back costs conditionally imposed and paid by the unsuccessful party for leave to overcome the main effect of the decision.

(3) It is my view, too, that if the costs paid by plaintiff as a condition for repleading were to be ipso facto recoverable back by it on the basis of a definitive disagreement by the Appellate Division with the first decision at nisi prius, they would have been included in the costs assessed by the Appellate Division on reversal.

An order of denial has been signed and entered accordingly.