
    Louis Waldstreicher, Respondent, v. Louis A. Solomon and Others, Individually and as Executors, etc., of Morris Solomon, Deceased, and Others, Appellants.
    Second Department,
    June 29, 1908.
    Costs ^subdivision 5, séction 3228, Coiié Civil Procedure, construed — recovery of less than $500.
    Subdivision. 5 of section 3228 of the Code of Civil Procedure does" not require a plaintiff, resident of Kings county, to bring his action'against residents of Yew-York county in the City Court of Yew York when possible in order to be entitled to, costs .and disbursements in the Supreme Court if the" recovery be under $500. The counties of Yew-York and Kings stand separate in the application of said section.
    Hooker, J., dissented, with opinion.
    Appeal by the defendants, Louis A. Solomon and" others, individually and" as-executors, etc., and others, from ail order of the Supreme "Court, made at the Kings County Special Term and entered in the office of the clei’k of the county of Kings on the 19th day" of March, 1908, directing a retaxation of costs. .
    
      Edward Kaufmann, for the appellants.
    
      Isidor Wasservogel, for the respondent.
   Gaynor, J.:

.. Section. 3228 of the Code of Civil Procedure (sub. 5) does" riot mean that- a plaintiff'in Kings county is called upon to bring his action in the City Court of Mew York,,which is in Mew.York county, when hé ¡can, as a test of whether he may recover costs if he recover less .than $500. Each county stands separate in the application of the statute. .

The order should be affirmed.

Jenks, Rich and Miller, JJ., concurred; Hooker, J., read for reversal. , . , - ""

Hooker, J. (dissenting):

This action was brought in the Supreme Court in" Kings county to recover the sum of $3,000 as'damages - for a 'wrongful eviction. The action was tried and a jury returned a verdict for the plaintiff for $650, which was reduced by the trial court to $450. On behalf of the plaintiff a bill of costs was presented to the clerk for adjustment, and on. objection made by defendants that the recovery as reduced by the trial court was less than the sum of $500 and that the action might have been brought in the City Court of Yew York, the clerk sustained the objection and the plaintiff excepted. The plaintiff thereupon moved for a review of the determination of the clerk in refusing to tax the bill of costs; the motion was granted and the clerk was directed to tax the bill' of costs in favor of the plaintiff. The defendants have appealed from that order.

There is no dispute as to any of the facts. At the time of the commencement of this action all of the defendants were residents of the county of Yew York and the plaintiff was a resident of Kings county. So much of subdivision 5 of. section 3228 of the Code of Civil Procedure as is pertinent reads as follows: “ In all actions hereafter brought in the Supreme Court, triable in the county of Yew 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 Yew York or the County Court of Kings county, and in which the defendant shall have been personally served with process within the counties of Yew York or Kings, the plaintiff shall recover no costs or disbursements unless he shall recover five hundred dollars or more.” The City Court of the city of Yew York eoncededly has jurisdiction of the. parties and the subject-matter of the action. Section 315 of the Code of Civil Procedure provides : “ The jurisdiction of the City Court of the city of Yew York extends to the following cases : 1. An action against a natural person or . against a foreign or domestic corporation, wherein the complaint demands judgment for a sum of money only, or to recover one or more chattels, with or without damages for the taking or detention thereof,” etc. Section 316 of the Code limits the jurisdiction as follows: “ 1. In an action wherein the complaint demands judgment for a sum of money only, the sum, for which judgment is rendered in favor of the plaintiff, cannot exceed two thousand dollars, exclusive of interest, and. costs as taxed * * *.” The complaint iii this action demands judgment for a sum of money only, and inasmuch as the recovery was for the sum of $450, it is clear that the City Court of the city of Hew York had. jurisdiction to render judgment in the case. While it is true that the complaint demands judgment for $3,000, it is apparent that except for this demand the City Court of the city of Hew York would have had jurisdiction, there being no other jurisdictional circumstances to deprive that court of jurisdiction of the parties and subject-matter of the action. It is clear, therefore, that subdivision 5 of section 3228 of the Code is applicable for tile reason that “ except for the amount claimed ” • the action could have been .brought in the City Court of the city of Hew York.

This statement of the facts and circumstances surrounding this motion would be sufficient for our decision were it not for the suggestion made by the respondent that subdivision 5 of the section should be held inapplicable because, being a resident of the county of Kings, he would have been, compelled to give security for costs hád he commenced this action in the City Court of the city of Hew York. He refers us to subdivision 1 of section 3268 of the Code of Civil Procedure, which provides that if the action is brought in the City Court, of the city of Hew York, the plaintiff, who resides without the city or county, as the case may be, wherein the court is located, may be required to give security for costs; and in this, connection he also refers to section 1345 of the Greater, Hew York , charter (Laws of 1901, chap. -466), which defines the term city as it is used in subdivision 1 of section 3268 of the Code and provides that it shall be construed to mean and apply to the territory within the city of Hew York as it existed and was constituted prior to the 1st day of January, 1898. This section -of the Code read in connection with section 1345 of the Greater Hew York charter would seem to indicate that a plaintiff living in the county of Kings desiring to sue a defendant residing in the county of Hew York, in the City Court of the city of Hew York, might be compelled on the motion of the defendant to give, security for costs.. We do not determine the question, however, for in otir view of this appeal it is unnecessary to do so.' Conceding, arguendo, that this plaintiff might have been, required by the defendants to give security for costs had he commenced his action in the City. Court of the city of Hew York, we do not think that this circumstance is sufficient to limit the plain meaning of subdivision S of section 3228 of the Code. The object of this subdivision depriving the plaintiff of the right to recover costs in cases there enumerated was to discourage the bringing of actions in the Supreme Court which might be brought in the City Court. (Patterson v. Woodbury Dermatological Institute, 117 App. Div. 600.) The mere fact that the plaintiff might be inconvenienced if compelled to bring his action in the City Court of the city of New York is- not sufficient to limit the' plain intent of subdivision 5 of section 3228; this inconvenience of the plaintiff is not a denial, of his right to bring the action in the City Court; the privilege to bring liis action in. that court still exists, and if the inconvenience is too great he still has the right to bring his action in the Supreme Court in the county of Kings, the only penalty attaching being that he cannot have costs unless he recovers $500 as damages. The Legislature has the undoubted right to make such provision, even though it entails inconvenience to certain suitors, in the interest of the common good and in an attempt t'o relieve the congestion of the calen-' dars of the Supreme Court in both counties as it had existed prior to the enactment of the subdivision of the Code. The Legislature has. the,prerogative of fixing the amount of costs in the first place and may, it cannot be doubted, at any time it sees fit reduce or increase the amount of costs and disbursements that may be taxed, and probably has the right to take costs away entirely. In view of the plain and unequivocal terms used in subdivision 5 of section 3228 of the Code, the meaning of those terms and the force of the section may not be construed away by the courts except in the plainest case clearly requiring such a construction.

The order appealed from should, therefore, be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Order affirmed, with ten dollars costs and disbursements.  