
    Thaddeus Munson, App’lt, v. Melvin Curtis, Resp’t.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed January, 1887)
    
    Costs —Code Civ. Pro. § 3070—Laws 1885, Chap. 523—Code Civ. Pro. § 3353.
    Where an action was commenced in a justices’ court and from the judgment rendered therein an appeal was taken to the county court, and a new trial had there, intermediate the dale of the appeal and the trial of the action in the county com t, the amendment to Code Civ Pro £ 3070, by Laws 1885, chap 522, went into effect. On an appeal irom the taxation of costs in the county court, held, that the section us amended must govern as to costs. That there is no vested right to uurecovcred costs and no want of legislative power to impose or deny costs in actions, or to impair the force during their pendency of any statute on the subject of costs. That Code Civ. Pro § 3353 docs not embrace unearned costs.
    Appeal by the plaintiff from an order of Ontario county court setting aside the taxation of the plaintiff’s costs, and directing the allowance and taxation of the defendant’s costs.
    
      L. C. Hall, for app’lt; Spencer Gooding, for resp’t.
   Bradley, J.

In October, 1882, this action was commenced in justices court, where the plaintiff recovered $55.31 besides costs, from which appeal was taken by the defendant to the county court of Ontario county for a new trial, which was had there in June, 1886, and a verdict of $11.91 rendered for the plaintiff. Both parties presented bills of costs for adjustment and insertion in the judgment, to the clerk, who allowed and taxed the plaintiff’s costs.

On the defendant’s motion for retaxation the county court set aside the allowance of the plaintiff’s costs, and directed those of the defendant to be taxed and inserted in the judgment. From this order the plaintiff appeals. And the question arises as to the effect of the amendment of section 3070 of the Code of Civil Procedure, by Laws of 1885, chapter 522, upon the right to costs in the action. As the recovery in the justices court was reduced more than ten dollars by that of the county court, the defendant would have been entitled to costs, under the statute, as it was at the time the appeal was taken to the county court.

The amendment of that section was passed June 13, 1885, and took effect the third day of July following, and by it the modification was such that if neither party within fifteen days after the service of notice of appeal served an offer to allow judgment, etc., the party recovering in the county court is entitled to costs. Before this change of the statute by such amendment, the time to make the offer provided for by it had elapsed, and compliance in that respect for protection in the matter of costs could not be had. It is, therefore, contended by the defendant’s counsel that the provisions of the amendment of section 3070 are not applicable and do not govern the right to costs in this action. And that such right is within the saving purpose of section 3352, which provides that nothing contained in any provision of the Code, should render ineffectual, or impair any proceeding in an action taken pursuant to law or any other lawful act done or right lawfully accrued or established before the provisions of it take effect, unless the contrary is expressly declared. And that for the purpose of avoiding such result, etc., the statutes in force on the day before such provisions take effect are deemed to remain in force notwithstanding their repeal.

The propriety and purpose of the provisions of that section are apparent, and they cannot be construed to embrace the situation presented here. The considerations involved in the saving provisions of that statute had in view the support of proceedings lawfully taken and rights lawfully accrued or established.

The right of review' furnished by a statute under which it is taken is one of the rights saved by the section, but no right to costs had accrued to either party at the time this amendment to the statute w:as made. The allowance of costs by one party against another to an action is wholly statutory, and is dependent upon the statute existing at the time the right to costs under it accrues. Supervisors v. Briggs, 3 Denio, 173. There is no vested right to unrecovered costs, and there is no want of legislative power to impose or deny costs in actions, or to impair the force during their pendency of any statute on the subject of costs. No question can arise upon the construction and import of this amendment of 1885, furnished by its terms. There is no opportunity to say that the legislative intention was that its terms should be so qualified as not to apply to appeals then pending. While such may have been a suitable qualification so as to obviate any prejudice from inability to render all of its provisions available in such cases, that consideration does not go to the question of legislative power, or to the legal effect of the statute, although it might, in giving it construction, if its terms permitted one -which would protect the situation of the parties, as it was at the time of the amendment, so as to conform their rights to that furnished by the then existing statute.

There was no legal authority for the defendant to serve an offer before the amendment, and none was furnished by that to him to make the offer there provided for. As applied to this action the statute required the payment by the defendant of the costs of the plaintiff if the latter recovered any sum whatever in the county court. It may seem a hardship to be charged with the consequences of omission to do that which he is not by the statute permitted to do, but relief from this situation is not found in the construction of the statute. Nor can we adopt the view of the court below that this section as amended was not applicable t© this case, and, therefore, the right to costs was dependent upon sections 3228, 3229, which entitled the defendant t© costs, because the plaintiffs recovery was less than $50. And in support of that are cited Snyder v. Hughes (27 Hun, 373), and Quick v. Nixon (27 Hun, 592). So far as they are authority it was held that when the statute regulating costs on appeals from justice’s court to county court cannot be applicable to a case presented, the right to costs will be governed by the general provisions of sections 3228 and 3229. That is not this case. During the time of the pendency of this action there has been continuously a statute providing for costs of such appeals to the county court and for the recovery of them. And the intermediate amendment does not defeat its application to this case, and, therefore, the operation of sections 3228 and 3229 upon the rights of the parties in this action to costs is defeated. The governing statute entitled the plaintiff to costs.

This is the view taken by the court in the Fourth department in Sheehan v. Buller (24 N. Y. Week. Dig., 168), which we think was correctly decided.

These views require the conclusion that the order should be reversed and the motion for retaxation denied.

Haight, Angle and Childs, JJ., concur.  