
    SMITH against MAY.
    
      Supreme Court, Sixth District; General Term,
    
      November, 1866.
    Appeal from Justice’s Court.—Costs oh Appeal.
    In determining which party to an action, brought by appeal from a justice’s court to a county court, should recover costs of the appeal, the county ' court can only compare the judgment of the justice, as'it was rendered with the recovery in the county court. The statute does not authorize the county court to cast interest on the judgment of the justice, and add it to such judgment, to make the amount to be compared with the verdict in the county court.
    Appeal by defendants from an order of the Otsego county court, awarding costs to the plaintiffs in that court.
    This action was brought by Calvin P. Smith against William . May and Lewis Spencer. The facts are stated in the opinion.
    
      Dewitt C. Bates for plaintiff.
    
      James E. Dewey for defendants.
   Balcom, J.

This action was originally brought before a justice of the peace, for defendants’ wrongfully taking from plaintiff’s possession, and carrying away and converting to their own use, certain personal property that belonged to the plaintiff. The plaintiff recovered a judgment against the defendants before the justice for $149 75 damages, besides costs. The defendants appealed from the judgment to the Otsego county court. The jury in the latter court rendered a verdict in favor of the plain tiff for $152 46 damages, for winch the clerk of Otiego county entered a judgment against the defendants; but he also entered a judgment in their favor for costs against the plaintiff. . The county court made an order setting aside the judgment for costs in favor of the defendants, and directing the clerk of that court to adjust the plaintiff’s costs, and enter judgment in his favor for such costs. The defendants have appealed from that order of the county court to this comt.

The appellants’ counsel claimed that the verdict of the county court was more favorable to the defendants than the judgment of the justice, because interest on that judgment from the time it was rendered to the day the verdict in the county court was received, if added to the judgment, would make it larger than the verdict.

The order of the county court awarding costs to the plaintiff was made the 20th day of January, 1866, and the question in the case must be decided by this court by the Code as it then existed.

The judgment for damages in the county court was for $2 71 more in favor of the plaintiff than the judgment in his favor was before the justice. Hence the judgment of the county court was more favorable to the respondents and less favorable to the appellants than the judgment of the justice (Code, sec. 371).

The language of the Code at the time the county court made the order appealed from, was, if the judginent in the appellate court be more favorable to the appellant than the judgment in the court below, the appellant shall recover costs, otherwise the respondent shall be entitled to costs (Code, see. 371).

There is no provision in the Code that authorizes the county court to cast interest on the judgment of the justice, and add it to such judgment, and then compare the amount with the verdict in the county court, for the purpose of determining whether the verdict is more favorable to the appellant than such judgment.

The county court.can only compare the judgment of the justice, as it was rendered, with the recovery in the county court, in determining' which party to the claim should recover costs.

This court decided this very question, at a general term in 1864, in Whitney v. Wells. In that case the plaintiff recovered a judgment, fifty dollars damages, for the conversion of wood, before a justice of the peace. The defendant appealed from the judgment to the Cortland county court, where the jury rendered a verdict against him for fifty dollars damages. The defendant contended in the county court that he was entitled to costs, because by adding interest to the judgment of the justice, it would make it greater than the plaintiff’s' recovery in the county court. But the county court awarded costs to the plaintiff, and the defendant appealed to this court from the order allowing the former to recover costs; and this court affirmed that order of the county court.

I am unable to see any reason for overruling our decision in Whitney v. W ells.

My conclusion is that th.e order of the county court, in this ease, .awarding costs to the plaintiff, was correct, and that it should be affirmed with costs.

Boardman, J., delivered an opinion in which he came to the same conclusion. Parker, and Mason, JJ. concurred.

Judgment accordingly.  