
    Benjamin Patterson, Respondent, v. John H. Woodbury Dermatological Institute, Appellant.
    First Department,
    February 8, 1907.
    Costs — recovery of less than $500 in Supreme Court, Mew York county — offer of judgment —■ when defendant entitled to costs from time of offer.
    The purpose of subdivision 5 of section 3228 of the Code of Civil Procedure, denying costs to a plaintiff bringing action in the Supreme Court in the counties of Mew York and Kings unless be recover $500 or more, was designed to discourage the bringing of actions in the Supreme Court which might be tried in the City Court. Although the latter part of said subdivision provides that the fact that in any action the plaintiff is not entitled to costs thereunder shall not entitle the defendant to costs under the following section, it is not thereby intended to deprive the defendant of costs merely because the plaintiff is notcntitled to costs by reason of his failure to recover $500.
    Thus, when in an action in the Supreme Court in said counties the defendant has made an offer of judgment not accepted and the plaintiff at trial recovers less than the offer and less than $500, the plaintiff is not entitled to tax costs accruing prior to the offer of judgment.
    Moreover, since the plaintiff failed to accept the offer of judgment and failed tq recover a judgment more favorable than the offer, he xis not entitled to cost; from the time of the offer, but is required to pay the costs to the defendant from that time, i ■ •. -
    
      Appeal by the defendant, John H. -Wood bury Dermatological Institute, from so much of an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 30th day of Hovember, 1906, as denies the defendant’s motion for an order directing the clerk of the Supreme Court to tax the costs in this action in favor of the defendant, and also from an order entered in said clerk’s office on the 12th day of December, 1906, resettling said orden
    
      William W Pellet, for .the appellant.
    
      Benjamin Patterson, for the'respondent.
   Laughlin, J.:

The action was brought in the Supreme Court, county of Hew York, to recover the sum of $761 for services. With its answer to the amended complaint the defendant served an offer of judgment for $313.85, together with interest thereon and the costs of the action. Upon the trial of the action the plaintiff obtained a verdict for only $279.35. - The offer of judgment was filed and by consent of the parties an entry was made in the minutes of the trial that it had been duly served and had not been accepted. On the taxation of co.sts the plaintiff claimed the right to tax the costs prior to the offer of judgment. This was opposed by the defendant upon the ground that subdivision 5 of section 3228 of the Code of Civil Procedure precludes the recovery of costs by the plaintiff in such case in the counties of Hew York and Kings. The recovery having been for less than $500, inclusive of costs, it is quite clear that the plaintiff was not entitled to costs. The object of the provisión depriving the plaintiff of the right to recover costs in such cases was to discourage the bringing of actions in the Supreme Court which might be brought in the City Court. The last sentence of said subdivision is as follows : “ The fact that in any action a ¡Plaintiff is not entitled to costs under the provisions of this subdivision shall not entitle' the -defendant to costs under the next following section.” • Section 3229, which is the section referred to as the next following section, provides that' the defendant is entitled, to costs, of course, in an action specified in the preceding section unless the plaintiff is entitled to costs as therein prescribed.

The learned counsel for the plaintiff contends that the purpose of the last sentence of subdivision 5 of section 3228 was -to preclude- the recovery of costs by a defendant in such a case. This is not the proper construction of these statutory provisions. Were it not for the last, sentence in said subdivision 5 the defendant would have been entitled by virtue of the provisions of section 3229 to costs as matter of course, even though it had not made any offer of judgment and although the plaintiff had recovered in the action. It is manifest that the Legislature, while intending to deprive the plaintiff of the right to recover costs in such case, did not intend that the defendant should be entitled to recover costs merely because the plaintiff was precluded from recovering them. .There is no basis for a legislative intent to deprive a defendant of the right to costs merely because he has been brought into the Supreme Court against this will when he might have been sued in the City Court.

The plaintiff selected the forum, and the defendant had no voice in the matter, and was bound to accept the election made by the ■plain-tiff. The construction for which the plaintiff contends would, if carried to its full extent, deprive the defendant of the right to costs in such case, even though he recovered. The language of the provision is that “ the plaintiff shall recover no costs or disburséments unless he shall recover five hundred dollars or more.” If the verdict should be for the defendant, the plaintiff would not recover $500 or more; and, therefore, literally, according to the plaintiffs contention, the defendant would not be entitled to costs. There was no intention to punish the defendant on account of the forum in which he is sued. It was necessary to insert the last sentence of said subdivision 5 to prevent a recovery of costs by the defendant under section 3'229 where no offer of judgment was involved, and where the plaintiff succeeded, but merely failed to recover $500, or more. Since the defendant did not recover .in this case, its rights to costs depend upon the provisions of section 738 of the Code of Civil Procedure, which -regulate costs where there is an offer of judg» ment. By virtue of the provisions of that section, the plaintiff, haying failed to accept the offer, and having failed to 'recover a more favorable judgment than that offered, was -precluded from recovering costs from the time of -the offer and was required to pay costs- to the defendant from that time.

It follows,'therefore, that the order should be reversed, with ten dollars costs and disbursements, and motion, granted, with ten dollars costs.

Patterson, P. J., Ingraham, Clarke and Scott, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs. Order tiled.  