
    Asuncion Ponce De Leon, Respondent, v. The Brooklyn Heights Railroad Company, Appellant.
    First Department,
    May 8, 1908.
    Costs — recovery of less than $500 in Supreme Court, New York and Kings counties.
    Where the plaintiff recovers less than $500 in an action in the Supreme Court in the county of New York which could have been laid, except for the amount claimed, in the City Court of the city of New York or the County Court of Kings county, in which the defendant could have been personally served, he is not, by virtue of subdivision 5 of section 3338 of the Code of Civil Procedure, entitled to costs or disbursements.
    The mere fact that the plaintiff’s counsel alleged that he knew of no method of making personal service is not sufficient to overcome the fact that such service could bavebeen made, where the defendant is a domestic corporation with its principal office in the county of Kings, and the residence of its president and directors is in. the county of New York.
    Appeal,by the defendant, The Brooklyn Heights Railroad Company, from 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 6th day of March, 1908, directing the clerk to tax a full bill of costs.
    
      Francis R. Stoddard, Jr., for the appellant.
    
      Charles M. Demond, for the respondent.
   McLaughlin, J.:

This action was brought to recover damages alleged to have been sustained by reason of defendant’s negligence. The amount claimed in the complaint was $5,000. The venue was laid in the county of Hew York, where the trial took place and a recovery was had for $400. The clerk declined to tax any costs in favor. of the plaintiff on the ground that he was not entitled to the same under subdivision 5 of section 3228 of the Code of Civil Procedure. A motion was then made to compel the clerk to tax such costs. The motion was granted and defendant appeals.

The subdivision of the section of the Code of Civil Procedure referred to reads as follows: “ In all actions hereafter brought in the Supreme Court, triable in the county of New York or the county of Kings, which could have been brought, except for the amount claimed therein, in the City Court of the city of New York or the County Court of Kings county, and in which the defendant shall have been personally served with process within the counties of New York or Kings, the plaintiff shall recover no costs or disbursements unless he shall recover five hundred dollars or more * *

The action could have been tried, except for the amount claimed, in the City Court of the city of New York or the County Court of the county of Kings, and personal service could have been obtained in either county. The plaintiff resides in the county of New York. The defendant is a domestic corporation and has its principal office or place of business in the county of Kings. Its president and several of its directors were, at the time of the commencement of the action, residents of the county of New York. It also has in that county a managing agent, upon whom service of process could have been made. These facts are not denied. The attorney for the plaintiff simply states in his affidavit that he knew of no way in which defendant could have been personally served in the county of New York. The fact that he knew of no method of making personal service is not sufficient to overcome the fact that personal service could have been made had an effort been made in that direction. He certainly could have brought the action, except for the amount claimed, in the County Court of Kings county. The defendant is a resident of that county, and is subject to the jurisdiction of that court under sections 340 and 341 of the Code of Civil Procedure. Its principal office or place of business is there.

The learned justice, as appears from his opinion, seems to have entertained the view that the plaintiff was not obliged to go outside the county of New York in order to bring an action, and if he recovered less than $500 nevertheless he was entitled to costs.

The right to costs is purely a creation of the statute, and authority therefor must be found in the statute or it does not exist. (Republic of Honduras v. Soto, 112 N. Y. 310.) The section of the Code above quoted is not ambiguous. It clearly and specifically states that if an action is brought in the Supreme Court, triable, in the county of New York or county of. Kings, which could have been brought, except for the amount claimed, in the City Court of the city of New York or the County Court of Kings county, in which the defendant shall have been personally served, the plaintiff shall recover no costs or disbursements unless he shall recover $500 or more. This recovery was for less than $500; the action could have been brought in the City Court of the city of New York or the County Court of Kings county. Unless the statute is to be repealed by judicial decree, I do not see how this order can stand. The purpose of the statute is obvious. It is to discourage the bringing of actions in the Supreme Court where the amount recovered is less than $500, and the penalty imposed for so doing is to deprive the party bringing them of costs and disbursements.

The order appealed from, therefore, is reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs, and the costs and disbursements taxed and included in the judgment (one hundred and fifty-four dollars and seventy cents) stricken therefrom.

Ingraham, Laughlin, Clarke and Scott, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.  