
    (50 Misc. Rep. 360)
    HILL v. KAHN.
    (Supreme Court, Appellate Term.
    April 24, 1906.)
    1. Costs — Amount—Statutory Construction.
    Under Code Civ. Proc. § 3228, subd. 5, providing that a plaintiff in an action in the City Court, where, but for the amount claimed, the action could have been brought in the Municipal Court, can have no costs unless he recover $250 or more, and section 734, providing that, if the plaintiff proceeds in the action after accepting the tender, the sum accepted must be deducted from the recovery and judgment rendered for the residue, and that plaintiff’s right to costs is determined by the amount of the residue, a sum accepted pending suit is not a recovery, and where plaintiff accepted payment of the amount claimed in, and withdrew, his first cause of action, thereby limiting his possible recovery to a sum less ' than $250, his right to costs was lost.
    
      2. Same — Taxation—Motion to Vacate.
    The failure of a party to assert the total invalidity of the taxation of costs before the taxing officer did not affect his right to move to vacate the taxation, since this was a question for the court, and not for the clerk.
    Appeal from City Court of New York, Special Term.
    Action by Fred Hill against Edward Kahn. From an order denying a motion to vacate a taxation of costs, defendant appeals.
    Reversed.
    Argued before SCOTT, P. J.f and TRUAX and BISCHOFF, JJ.
    Levinson & Levinson, for appellant.
    Charles C. Marshall and Samuel C. Plerriman, for respondent.
   BISCHOFF, J.

The action was brought upon two causes of action, one for $576, and the other for $200. Pending the trial the plaintiff accepted payment of the amount claimed upon the first cause of action, and the parties entered into a stipulation that “all matters relating to the said first cause of action be, and the same are, hereby eliminated from this action, without costs to either party as against the other.” The cause being brought to trial, the plaintiff had a verdict for $200 upon the single cause of action litigated, and taxed his costs. Thereupon the defendant moved to vacate the taxation upon the ground that the recovery, being less than $250, carried no costs. The motion was denied and the defendant has appealed.

In our opinion the motion should have been granted. A plaintiff, in an action brought in the City Court, where, but for the amount claimed, the action could have been brought in the Municipal Court, can have no costs “unless he shall recover $250 or more.” Code Civ. Proc. § 3228, subd. 5. Obviously it is the “recovery,” not the amount claimed, which determines the question, and a sum accepted pending suit is not a “recovery,” within the meaning of the Code. The distinction is noted in the provision relating to tenders (Code § 734) :

“If the plaintiff proceeds in the action after accepting the tender the sum accepted must be deducted from the recovery and judgment rendered for the residue. * * * The plaintiff’s right tb recover costs and his liability to-pay costs to the defendant are determined by the amount of the residue.”"

Here the word “recovery” is used in the sense of the award made in the action, and we are to assume that the use of the word in section 3228, relating to the same general subject, was with the same intention. It appears that there was no direct tender in the present case, because the defendant had not complied with the requirements of section 732 of the Code, and the right to costs could have been preserved, had the plaintiff refused the offer and taken his full recovery in the action. By accepting the payment and withdrawing the first cause of action, however, the plaintiff necessarily limited his possible recovery to a sum less than $250, and his right to costs was lost.

The failure to assert the total invalidity of the taxation before the taxing officer did not affect the defendant’s right to make this motion to vacate the taxation, since this was a question for the court, not for the clerk. De Graff v. Hoyt, 4 Thomp. & C. 348, 351.

The order is therefore reversed, with $10 costs and disbursements, and the motion granted, with $10 costs.

All concur.  