
    Fred Hill, Respondent, v. Edward Kann, Appellant.
    (Supreme Court, Appellate Term,
    April, 1906.)
    Municipal Courts — Procedure — Costs — City Court of the City of Hew York.
    Costs — When allowable — Recovery of less than statutory amount. Code Civ. Pro., § 3228, Subd. 5.
    In an action in the City Court of the city of New York brought upon two causes of action amounting to $776, where one cause of action is settled and by stipulation eliminated from the suit and the plaintiff recovers a verdict for $200 on the other cause of action; he is not entitled to costs; and a motion to vacate the taxation should be granted.
    
      Appeal by the defendant from an order of the City Court of the city of Yew York, denying a motion to vacate the taxation of costs.
    Levinson & Levinson, for appellant.
    Charles C. Marshall and Samuel C. Herriman, for respondent.
   Bischoff, J.

The action was brought upon two causes of action, one for $576 and the other for $200. Pending the trial the plaintiff accepted payment of the amount claimed upon the first cause of action and the jiarties entered into a stipulation that “all matters relating to the said first cause of action be and the same are hereby eliminated from this action, without costs to either party as against the other.” The cause being brought to trial, the plaintiff had a verdict for $200 upon the single cause of action litigated, and taxed his costs. Thereupon the defendant moved to vacate the taxation upon the ground that the recovery, being less than $250, carried no costs; the motion was denied and the defendant has appealed.

In our opinion the motion should have been granted.

A plaintiff in an action brought in the City Court, where, but for the amount claimed, the action could have been brought in the Municipal Court, can have no costs, unless he shall recover two hundred and fifty dollars or more.” Code Civ. Pro., § 3228, subd. 5. Obviously it is the “ recovery,” not the amount claimed, which determines the question; and a* sum accepted, pending suit, is not a “ recovery ” within the meaning of the Code. The distinction is noted in the provision relating to tenders (Code, § 734) that: “If the plaintiff proceeds in the action, after accepting the tender, the sum accepted must be deducted from the recovery, and judgment rendered for the residue. * * "" The plaintiff’s

right to recover costs, and his liability to pay costs to the defendant, are determined by the amount of the residue.” Here the word “recovery” is used in the sense of the award made in the action; and we are to assume that the use of the word in section 3228, relating to the same general subject, was with the same intention.

It appears that there was no direct tender in the present case, because the defendant had not complied with the requirements of section 732 of the Code; and the right to costs could have been preserved, had the plaintiff refused the offer and taken his full recovery in the action.

By accepting the payment and withdrawing the first cause of action, however, the plaintiff necessarily limited his possible recovery to a sum less than $250, and his right to costs was lost.

The failure to assert the total invalidity of the taxation •before the taxing officer did not affect the defendant’s right to make this motion to vacate the taxation, since this was a question for the court not for the clerk. DeGraffe v. Hoyt, 4 T. & 0. 348, 351.

The order is, therefore, reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.

Scott and Teuax, JJ., concur.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.  