
    George N. Balcom, App’lt, v. Fannie Terwilliger, Resp’t.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed November, 1886.)
    
    1. Costs—What law governs the allowance or.
    Costs will be granted or refused in accordance with the law existing when the party acquired the right to costs. Following Garbing v. Lam (27 Hun, 112).
    2. Justices’ courts—Action brought in—Code Civ. Pro., § 8347, sued. 11, and § 3070.
    An action commenced in a justices’ court, after September 1, 1880, is not excluded by Code C'v. Pro., § 3 47, subd. 11, from the operation of Code Civ. Pro., § 3070, ai it stood after the amendment of 1885.
    3. Same—Appeal eor a new trial—Costs upon—("ode Civ. Pro., § 3070.
    When an appeal for a new trial is taken from the decision of a justices" court, if neither party make an offer to a low judgment to be rendered in the appellate court, as provided in Code Civ.' Pro., $ 3070, the party ia whose favor the determination of the appellate court is given is entitled to recover his costs on appeal.
    Appeal from an order made at the Broome county court, setting aside the taxation of plaintiff’s costs, and striking them from the judgment, and directing costs in defendant’s favor.
    Issue was joined in this action in a justices’ court in December, 188A The plaintiff recovered a judgment therein on the 10th of January following, for $93.92 damages, and appealed therefrom to the comity court, on January 28th demanding a new trial. The plaintiff on June 17, 1886, recovered judgment for $103.20 damages, and interest, and entered it on that date, he also taxed and entered his costs in the judgment.
    
      Conniffe & Penrie, for app’lt; Carver & Deyo, for res’pt.
   Hardin, P. J.

Garling v. Ladd (27 Hun, 112) is an authority to the effect that costs “will be granted or refused in accordance with the law existing when the party has the right to costs.”

That case was referred to in Atkin v. Pitcher (31 Hun. 352), and it was held that in a case brought before 1st of of September, 1880, the date when the provisions of the Code' of Civil Procedure took effect, the costs were to be taxed under section 371 of the old Code, as subd. 11 of the Code of Civil Procedure, § 3347, declares that chapters 18 and 19 of the Code of Civil Procedure apply .only to an action or special proceeding commenced on or after the 1st of September, 1880. This action was commenced after September, 1880, to wit, on the day of December, 1884, and, therefore, does not fall under the exceptional provision of section 3347, subd. 11, chap. 522 of the Laws of 1885, amended section 3070 of the Code of Civil Procedure, and it took effect on the 3d of July, 1885. If we apply the exception as to when the amendment shall take effect, or if we assume that the section as amended shall be restricted, its application to cases enumerated in subd. 11 of section 3347, we must say that as this action was commenced after September 1, 1880, it is not excluded from the operation of section 3070, as it stood after the amendment thereof in 1885. We are thus brought back to the general rule, that costs are regulated and given by the statute in force, when the party has the right to costs. By section 3070, as amended in 1885, it is provided, viz : If neither party make an offer as provided herein, the party in whose favor the verdict, report or decision in the appellate court is given, shall be entitled to recover his costs upon the appeal. As no offer was made, and the plaintiff recovered in the county court eighty-nine dollars, we must hold that his case falls within the provision we have quoted from section 3070 of the Code of Civil Procedure, as amended in 1885, in accordance with cases adjudged. Sheehan v. Buller, 24 Weekly Dig., 168. If the question were an open one in this court, it might be doubted whether in this case either party were entitled to costs, inasmuch as no offer of judgment, as provided in section 3070, as amended by chapter 522 of Laws of 1885, could be made. It might be questioned whether the legislature intended that the omission of an offer, as provided, should cast a party in costs who, when the appeal was taken, was not authorized to make such offer as that named in section 3070, as amended by the legislature in 1885. Railroad Co. v. Roach, 80 N. Y., 339; Engel v. Fischer, 15 Abb. N. C., 72; People v. Comm'rs of Taxes of New York, 95 N. Y., 559.

However, as before remarked, we must follow Sheehan v. Buller (supra), and the cases referred to in the opinion of Mr. Justice Follett, and apply section 3070, as amended in 1885, to this case, and reverse the order of the county court and direct a restoration of the costs taxed in favor of the plaintiff and inserted in the judgment as originally entered.

The order of the county court of Broome county should be reversed, with $10 costs and disbursements.

Boardman and Follett, JJ., concur.  