
    Frank G. Swartout, Plaintiff, v. Herman Scheideberg, Defendant.
    (Supreme Court, New York Special Term,
    June, 1910.)
    Costs — Amount — In general — Amount of recovery as affecting amount of costs.
    The provision of subdivision 5 of section 3228 of the Code of Civil Procedure, that, where an action could have been brought in the City Court of the city of New York and the defendant shall have been personally served within the county of New York, the plaintiff shall recover no costs or disbursements unless he shall recover $500 or more, is not applicable to a case where the defendant voluntarily appears without personal service of the summons.
    Motion for retaxation of costs.
    S. F. D. Jones, for plaintiff and motion.
    Moses R. Ryttenherg, for defendant, opposed.
   Giegerich, J,

The action was brought to recover the sum of $150 on contract. The defendant was a non-resident, and service by publication was ordered and was commenced. Thereafter the defendant voluntarily appeared in the action, the case came to trial and the plaintiff recovered a verdict for $180.75. The clerk has refused to tax any costs, relying upon the provisions of subdivision 5 of section 3228 of the Code, which provides that where the action could have been brought in the City Court of the city of Kew York, and the defendant shall have been personally served within this county, the plaintiff shall recover no costs or disbursements unless he shall recover $500 or more. The defendant’s argument is that as section 424 of the Code provides that a voluntary general appearance of the defendant is equivalent to personal service of the summons upon him, it must be held that the present case falls within the subdivision of section 3228 above cited. But section 424 does not say that a voluntary general appearance is or even shall be deemed a personal service, but simply that it is the equivalent of a personal service. For certain purposes a general appearance may be made the equivalent of personal service, but it is not personal service, and the language of section 3228 specifies only personal service, and I can see no warrant'for extending its meaning to the case of a voluntary general appearance. The clerk will be directed to pass upon the items contained in the bill of costs, and to tax such of them as are proper. The plaintiff may have ten dollars costs of the motion.

Ordered accordingly.  