
    
      Ex parte Lampman.
    The plaintiff coart recovered $40 ; and, recovery1’wás reduced to $3, that he was eoatfwith*dfj bursements; C. P. had no discretion to costs°e ⅛6
    That discre. tion exists in those cases on-Ipprifee* re* covers less in in the justice’s pmirt; but still more than $25.
    Lampman sued Bennett and others in a justice’s court of the county of Oneida ; and recovered judgment for $^0. The defendants appealed to the common pleas of that county ; and a verdict was rendered for the plaintiff, on trial there, for $3,12|. The court held that this was a case jn whjch they might exercise a discretion as to costs, within the 41st section of the 50 dollar act, (sess. 47, ch. 238, p. 296,) and awarded the plaintiff $1 costs, only, it was now submitted, by consent, to this court, whether the C. P. were correct in their construction of the act.
    
      -Allen & Collins, for the appellee.
    -/i. Senfietty contra,
   Curia.

By the proviso to the 39th section of the statute in question, in all cases of appeal, if either party recover a sum not exceeding 25 dollars, his costs are not to exceed 7 dollars beside disbursements.

. , . .. , - - ,, , The case is, therefore, provided lor by that section; and the court below erred in not awarding the 7 dollars and disbursements.

The discretionary power of reducing the costs, is given by the 41st section, and is in cases not otherwise provided for. It can apply only to a case where the recovery in the common pleas is reduced below the recovery before fhe justice ; but still exceeds $25.  