
    Charles H. Clark and Morris F. Clark, Respondents, v. Leopold Malzacher, Appellant.
    
      Costs — on appeal from the Municipal Court of Rochester.
    
    In an action brought in the Municipal Court of Rochester to recover thirty-seven ■ dollars and fifty cents for merchandise sold, in which the defendant answered, interposing a counterclaim and demanding judgment in his favor for five hundred dollars, judgment was rendered in favor of plaintiffs for thirty-five dollars and twenty-five cents damages and ten dollars and sixty-five cents costs, from which the defendant appealed to the County Court of. Monroe County demanding a new trial, on which a verdict was rendered in favor of the defendant for “no cause of action.”
    
      Held, that although the defendant did not sustain his counterclaim, the verdict was in his favor to the extent of destroying the judgment and claim of the plaintiffs,, which stood against him when the appeal was taken, arid that, no offer of judgment having" heen made hy either party, he was- entitled to costs upon such appeal. ,
    Appeal by the defendant, Leopold Malzacher, from an order of the County Court of Monroe county, entered in the office' of the clerk of the county of Monroe on the 29th day of March, 1897, disallowing and canceling of record defendant’s costs and disbursements herein as taxed by the clerk of Monroe county.
    
      Frederick A. Mann, for the appellant.
    
      William W. Armstrong, for the respondents,
   Green, J.:

This action was brought in the Municipal Court of Rochester to recover thirty-seven dollars and fifty cents, alleged in the complaint to be due and owing from the defendant to plaintiffs for fifty soap ' cutters, manufactured and sold to- defendant, at his request, and upon his agreement to pay therefor the above-mentioned sum. The defendant answered and interposed a counterclaim for defective construction and breach of- guaranty in the manufacture of the cutters, and demanded judgment in his favor for $500. The issues thus . joined were tried before a judge of the Municipal Court of Rochester, and resulted in a judgment in-favor of the plaintiff for thirty-, five dollars and ■ twenty-five cents damages and ten dollars and sixty-five cents' costs. From that judgment the defendant appealed to the County Court of Monroe county and demanded a new trial • therein. Upon such appeal no. offer of judgment was made by either party. A new trial was thereafter had before" the county judge of Monroe county and a jury, and resulted in a verdict in favor of the defendant of “no cause of action.” Judgment’was thereupon entered in accordance with such verdict, together with costs to the defendant, as taxed by the county clerk of Monroe county, . From such taxation the plaintiff appealed to the County Court of Monroe county, and that court set aside the costs as taxed ' and disallowed any costs to the defendant, and directed the clerk to cancel the same of record.

The practice in this case -is prescribed by section 3070 of the Code of Civil Procedure, and the provision in -that section applicable to the question here involved is this : “ If neither party makes 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.” This is plain language, plainly expressing the intent of the Legislature to give' costs to the party who recovers in the appellate court whether the amount of such recovery be great or small, or whether such party recovers all the claim which he makes in his pleading.

In the case at bar the judgment of the Municipal Court of Rochester established the claim of the plaintiff and disallowed the claim made by the defendant.^ At the time 'of the appeal therefrom by the latter, a judgment had been entered and stood against him, establishing plaintiff’s claim and disallowing the claim of the defendant. From that judgment the defendant appealed, and the decision of the appellate court established the fact that the plaintiff had no claim against the defendant and that the defendant had no claim against the plaintiffs. The verdict was, therefore, in favor of the defendant,.to the extent of destroying the judgment and the claim of plaintiffs which stood against -him when the appeal 'was taken. The verdict, it is true, was not so favorable to the defendant as he claimed it should have been ; and yet it was in his favor, as it relieved him from plaintiffs’ judgment and claim and the judgment established by the Municipal Court of Rochester. His right to costs, therefore, is not made dependent upon the amount, but on the fact of recovery and, if no offer has been made, it depends upon nothing else. (Pierano v. Merritt, 148 N. Y. 293.)

The verdict in this case .being in favor of the defendant, brings this case within the plain provisions above quoted, and justified the taxation of costs herein in favor of the defendant, and requires the reversal of the order of the County Court of Monroe county, and the affirmance of the act of the county clerk.

The order of the County Court of Monroe county is reversed, and the taxation of costs by the county clerk of Monroe county is affirmed, with costs.

All concurred, except Follet, J., not sitting.

Order of County Court of Monroe county reversed, with ten dollars costs and disbursements, and taxation of the clerk affirmed.  