
    Bridget O'Connor, Plaintiff, v. The Union Railway Co., Defendant.
    (Supreme Court, New York Special Term,
    January, 1901.)
    Costs — Attach to any recovery in an action brought under Code C. 3?., § 1903 for causing death by negligence — Code C. F., §§ 3863, subd. 3, 3338, subd. 3.
    Where, in an action brought under Code C. P., § 1902, to recover damages for the death of a decedent caused by the negligence of the defendant, the plaintiff recovers six cents damages, she is entitled to tax a full bill of costs.
    Appeal by plaintiff from the clerk’s taxation of costs in an action for negligence.
    Baggott & Ryall, for plaintiff.
    Hoadly, Lauterbach & Johnson, for defendant.
   Truax, J.

This is an action to recover damages for causing death by negligence. On the trial plaintiff recovered but six cents damages, and therefore the clerk refused to tax costs in favor of the plaintiff, and taxed a full bill of costs against the plaintiff. From this action of the clerk the plaintiff, appeals. Plaintiff is entitled to costs upon the rendering of a judgment in his favor in an action of this kind by the express terms of subdivision 3 of section 3228 of the Code of Civil Procedure. By the terms of that subdivision, however, if plaintiff recovers less than fifty dollars damages in an action to recover for an assault, battery,' false imprisonment, slander, criminal conversation, seduction, or malicious prosecution, or a fine or penalty, in which the People of the State are a party, the amount of his costs cannot exceed his damages. These exceptions (except the one relating to a fine or penalty) are referred to in the third subdivision of section 2863, which limits the jurisdiction of a justice of the peace in certain cases. This last subdivision (3) also excepts an action brought under section 1902 of the Code, under which section this action was brought. How, if it was intended to except an action of this kind, it would have been mentioned in subdivision 3 of section 3228 along with the other exceptions mentioned in that section. Subdivision 4 of section 3228 provides in effect, that in an action to recover a sum of money only other than one of those specified in subdivisions 1, 2 and 3 of that section, plaintiff shall not recover costs unless he recovers the sum of fifty dollars or more. The defendant is. entitled to costs in actions specified in section 3228 only when plaintiff is not entitled to them. The action of the clerk is overruled, and he is directed to tax a full bill of costs for plaintiff.

Ordered accordingly.  