Supreme Court, Appellate Division, Second Department, New York.
CYPRESS ESTATES, INC., Appellant,v.Henry S. WILSHIRE et al., Respondents.
June 7, 1971.
Action to compel determination of claim of title to real property. From judgment and orders of the Supreme Court, Suffolk County, plaintiff appealed. The Supreme Court, Appellate Division, held that inclusion of expenses of printing of appeal to Appellate Division in hill of costs, as taxed, was error.
Prior order affirmed insofar as appealed from; subsequent order dismissed; judgment modified, and as modified affirmed.
 Costs 32(1)102k32(1) Most Cited Cases
Purpose of statute providing that party in whose favor judgment is entered is entitled to costs in action unless otherwise provided by statute or unless court determines that to so allow costs would not be equitable, under all the circumstances, is to provide taxing officer with basis to tax costs. CPLR 8101.
 Costs 254(1)102k254(1) Most Cited Cases
Inclusion of expenses of printing of appeal to appellate division in bill of costs, as taxed, was error. CPLR 8101. **279 Dreyer & Trauf, Samuel Kirschenbaum, New York City, for appellant.
John W. Helfrich, Mineola, for respondents.
SAMUEL RABIN, P.J., and HOPKINS, MUNDER, LATHAM and SHAPIRO, JJ.
MEMORANDUM BY THE COURT.
In this action to compel a determination of a claim to title to real property, plaintiff appeals (1) from so much of an order of the Supreme Court, Suffolk County, dated July 18, 1968 and made upon remittitur of the Court of Appeals, as allowed defendants and costs and disbursements incurred by them in this action; (2) from so much of the judgment, on remittitur, of the Supreme Court, Suffolk County, dated July 31, 1968, as granted defendants $1,011.10 as such costs and disbursements; and (3) from an order of said court dated March 30, 1971, which denied plaintiff's motion to resettle said judgment. The resettled judgment of the Supreme Court, Suffolk County, dated February 4, 1966, affirmed by this court on April 3, 1967, without costs, and thereafter by the Court of Appeals with costs (Cypress Estates v. Wilshire, 27 A.D.2d 986, 280 N.Y.S.2d 560, affd. 21 N.Y.2d 925, 289 N.Y.S.2d 758, 237 N.E.2d 78), dismissed the complaint and awarded judgment of adverse possession to defendants, but was silent as to costs. Upon affirmance by the Court of Appeals an order for judgment on remittitur, dated July 18, 1968, was entered affirming the resettled judgment, 'with costs of said appeal, together with the costs and disbursements incurred by the Defendants-Respondents in the action, to be taxed against the Plaintiff-Appellant, Cypress Estates, Inc.'. Costs and disbursements were taxed in the sum of $1,011.10 and incorporated in the judgment on remittitur dated July 31, 1968.
Order dated July 18, 1968 affirmed insofar as appealed from, without costs.
 CPLR 8101 states: 'The party in whose favor a judgment is entered is entitled to costs in the action, unless otherwise provided by statute or unless the court determines that to so allow costs would not be equitable, under all of the circumstances.' The purpose of this section is to provide the taxing officer with a basis to tax costs. There is **280 nothing in the *578 record preventing the taxing officer from taxing costs in this record.
Judgment modified, on the law, by deleting the amount of $1,011.10 from the decretal paragraph thereof and substituting therefor the sum of $767.54. As so modified, judgment affirmed insofar as appealed from, without costs.
 Respondents concede that in the bill of costs, as taxed, the additional allowance to them of $150 on their counterclaim, pursuant to CPLR 8302, is incorrect. Also erroneously included therein as disbursements is the sum of $93.56, the expenses of printing on the appeal to this court.
Appeal from order of March 30, 1971, dismissed as moot, without costs, in view of the determinations herein on the appeals from the order of July 18, 1968 and the judgment.
323 N.Y.S.2d 278, 37 A.D.2d 577
END OF DOCUMENT