
    George H. Fowler, Appellant, v. George B. Dearing, Respondent.
    
      Costs — action begun in a, Justice’s Court, and appealed and a new trial demanded, in the County Court — effect of an offer not accepted, and no counter offer made, where fifty dcllars is recovered.
    
    The provisions of section 3228 of the Code of-Civil Procedure relating to costs-, apply to proceedings which have originated in courts of justices of the peace, and where a plaintiff in such an action recovers on a new trial in the County Court a judgment amounting to fifty dollars he is entitled tó costs as a matter-of right.
    
      In an action originally brought in a Justice’s Court the complaint was dismissed, with ten dollars costs. The plaintiff appealed, demanding a new trial in the County Court, whereupon the defendant served upon him an offer to allow a judgment to be rendered in the County Court in favor of the plaintiff for ten dollars. The plaintiff did not accept the offer nor did he serve upon the defendant any written offer whatever, and when the case came to trial in the County Court, obtained a verdict for §202.15.
    
      Held, that notwithstanding the fact that the plaintiff did not accept the defendant’s offer and made no offer upon his own part, he was entitled to costs for the reason that he had recovered a sum exceeding fifty dollars; ■
    That the amendment of section 3070 of the Code of Civil Procedure made in 1895, providing that " Costs when awarded according to the provisions of this section shall be in amounts provided in section 378 of this article,” did not preclude the application of section 3228, as the clause in question merely fixed the particular sum which might be awarded as costs under the amended section, and had nothing tó do with the applicability of the more general provisions of the Code of Civil Procedure in regard to the circumstances under which a party became entitled to costs.
    Appeal by the plaintiff, George H. Fowler, from an order of the County Court of the county of Queens, entered in the office of the ■clerk .of the county of Queens on the 4th day of May, 1896, affirming a ruling of the county clerk of the county of Queens to the •effect that the plaintiff was not entitled to recover any costs and •disbursements against the defendant in an action, and denying the motion made by the plaintiff .to tax the same.
    
      M. Linn Bruce, for the appellant.
    
      Harrison S. Moore, for the respondent.
   Willard Bartlett, J.:

This action was originally brought in a Justice’s Court in Queens county to recover $192.15 for goods sold and delivered and services rendered. The defendant prevailed upon the trial, which resulted in a judgment dismissing the complaint, with ten dollars costs. The plaintiff appealed to, the County Court, demanding a new trial therein, under section 8068 of the Code of Civil Procedure. The defendant thereupon served upon the plaintiff an offer to allow judgment to be rendered in the appellate court in favor of the plaintiff for ten dollars. The plaintiff did not accept this offer, nor did he serve any written offer upon the defendant that he would take judgment for a specified sum. When the case came to trial in the County Court, however, the plaintiff obtained a verdict for $202.15. "Upon-a subsequent application to the county clerk to tax the costs, that officer decided that no costs could be awarded to the plaintiff, and his ruling to this effect has béen sustained in the County Court.

It seems to me that the correctness of this ruling depends upon the question whether or not the general provisions relating to costs in section 3228 of the Code of Civil Procedure apply to proceedings originating in Courts of Justices of the Peace. Under section 3070 of the Code, as construed in the case of McKuskie v. Hendrickson (128 N. Y. 555), a successful plaintiff who has refused a defendant’s offer of judgment is not entitled to costs unless he recovers more than the amount offered by the defendant and has made an offer himself to take judgment for a specified sum which does not exceed the amount that lie eventually recovers. The plaintiff, in the present action did not accept the defendant’s offer, and recovered an amount far in excess thereof, but had himself made no offer to take judgment for any particular sum. ITence, he was not entitled to costs unless the case comes under that clause of section 3228 of the Code which gives costs to the plaintiff where he recovers the sum of fifty dollars or more.

In the case of McKuskie v. Hendrickson, already cited, there is a clear intimation by the Court of Appeals that this provision is applicable to suits in Justices’ Courts, and the same conclusion necessarily results from the decision of the General Term of the third department in Birdsall v. Keyes (66 Hun, 233). In the former case the court said that the jxlaintiff was not entitled to costs by virtue of any general provision contained in section 3228 of the Code “ because he did hot recover as much as $50 thereby clearly implying that he would have been entitled to costs if the recovery had amounted to that sum. In Pierano v. Merritt (148 N. Y. 289) this intimation is referred to by Yank, J., without any suggestion of disapproval. In the Birdsall case the amount of the recovery in the Justice’s Court was $77, and the defendant appealed to the County Court in Albany county and took a new trial therein, meantime offering to allow judgment to be taken against him for $30. The plaintiff did not accept this offer, and made no offer on his own part fixing an amount for which he was willing to take judgment. Upon the trial in. the County Court the plaintiff obtained a verdict for $55, upon which judgment was entered amounting to $112.31, inclusive of costs. The question on the appeal to the General Term was whether these costs were properly allowed to the plaintiff or not. The General Term held in substance that when an offer under section 3070 off the Code was not accepted, and was not as favorable to the adverse party as the result of the trial, the offer had no effect whatever upon the question of costs. It further held, however, that inasmuch as section 3071 provides that after the expiration of ten days from the time of filing the justice’s return the action is deemed ail action at issue in the appellate court, the rights of parties in respect to costs are governed by the provisions of law applicable to actions originally commenced in such a- court; and inasmuch as the recovery in the County Court of Albany county ivas for a sum sufficient to entitle the plaintiff to costs if he had begun his suit there in the first instance, he-Avas entitled to a full bill of costs in the action. I do not. see Iioav this result could have been reached without holding that subdivision 4 of section 3228 of the Code regulated the award of costs under such circumstances.

In 1895 section 3070 was amended by the addition of this sentence : Costs when awarded according to the provisions of this section shall be in amounts provided in section 3073' of this article.” The learned county judge, in his opinion, takes the view that this amendment precludes the application of section 3228 to the case at bar, but I am unable to perceive why it should be deemed to have that effect. It seems to me that the additional clause merely fixes the particular sums which may be awarded as costs under the amended section, and has nothing to do with the applicability of the more general provisions of the Code in regard to the circumstances under which a party becomes entitled to costs.

Order reversed, with teii dollars costs and disbursements, and costs directed to be taxed in favor of the appellant.

AH concurred, except Pbatt, J., not sitting.

Order reversed, Avith ten dollars costs and disbursements, and costs directed to be taxed by the county clerk in favor of the appellant.  