It appears that this action was brought to recover ninety-four dollars. It was settled by payment, and the following receipt was finally given:
“ Hew York, September 9, 1898.
“ Received of Mary Yermilyea, four dollars in full settlement in City Court, George H. Elliott v. Mary Yermilyea.
“ Johnes & Travis,
“ Attorneys for Plaintiff.”
On September 19, 1898, plaintiff’s attorneys gave notice of motion “ for an order discontinuing this action without costs.” In this notice of motion, they do not ask for costs of motion, and consequently none could be granted.
It follows that the order of September 27, 1898, granting ten dollars motion costs, was erroneous and should he modified, by striking out the ten dollars costs, and discontinuing the action without costs, as prayed for in the notice of motion.
The order of October 3, 1898, denying the resettlement is reversed, inasmuch as the order should have been resettled, as indicated.
3STo costs of this appeal to either party.
Conlan and Hascall, JJ., concur.
Order reversed, no costs.