SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT
November 25, 1969
NATIONAL BANK OF NORTH AMERICA, APPELLANT-RESPONDENT,
MARINE MIDLAND GRACE TRUST COMPANY OF NEW YORK, RESPONDENT-APPELLANT, AND DOUGLAS L. ELLIMAN & CO., INC., RESPONDENT
Concur -- Stevens, P. J., Eager, Tilzer, Markewich and McNally, JJ.
Order entered on June 10, 1969, and judgment entered on June 25, 1969, in this turnover proceeding modified, on the facts and law, to the extent of awarding costs of the action to Marine Midland Grace Trust Company of New York against appellant-respondent National Bank of North America, and, as so modified, affirmed, with $50 costs and disbursements of the appeal to Marine Midland Grace Trust Company of New York and Douglas L. Elliman & Co., Inc., against National Bank of North America. Marine Midland was the prevailing party (CPLR 8101). It was error to refuse costs to it. Costs and disbursements are awarded in a special proceeding as in an action. (8 Weinstein-Korn-Miller, N. Y. Civ. Prac., par. 8101.03.) Pursuant to CPLR 8101, costs are to be awarded the prevailing litigant unless the court determines that to allow costs would not be equitable. There are no circumstances which warrant denial. Since appellant Marine Midland Grace Trust Company of New York did not object to the establishment of the special noninterest account, no interest is allowed.
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