The evidence was substantially the same as that given upon the former trial of the action, and we must adhere to our decision (123 App. Div. 667) as to the interpretation of the written agreement. The discretion of the justice was properly exercised in opening the default, but a mistake was made in denying the motion for a retaxation of costs. There is no authority in the taxing officer to allow costs to the defendant, except where the party has appeared by an attorney at law, who filed a verified pleading or a -written notice of appearance (Mun. Ct. Act [Laws of 1902, chap. 580], § 332), and as the defendant did not file a verified pleading and neglected to file a written notice of appearance, it follows that the costs were improperly taxed and plaintiff’s motion should have been granted.
The judgment of the Municipal Court and order opening the default are affirmed, without costs. The order denying plaintiff’s *621motion for a retaxation is reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.
Woodward, Jenks, Gaynor and Miller, JJ., concurred.
Judgment of the Municipal Court and order opening default affirmed, without costs. Order denying plaintiff’s motion for retaxation reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.