
    BIRDSALL v. KEYES.
    (Supreme Court, General Term, Third Department.
    November 22, 1892.)
    Costs—Appeal to County Court—Offer op Judgment. Code Civil Proc. § 3070, relating to appeals to the county court where a retrial is asked for, provides that within 15 days after service of notice of appeal either party may offer to allow judgment for a specific sum, and, if not accepted, the party on whom the offer is served will be liable for costs, unless he recovers more than the amount of the offer. Section 3071 provides that after 10 days from the filing of the justice’s returns the action is deemed an action at issue in the appellate court, and all proceedings therein, including entry of judgment, as if the action had been commenced in the appellate court. Held, where a recovery on appeal exceeds an offer of judgment by the adverse party, that, the appeal being an issue in the appellate court, the question of costs is governed by the law applicable to original actions therein, and is not affected by the offer of judgment.
    
      Appeal from Albany county court.
    Action by Thomas C. Birdsall against George E. Keyes. From an order of the county court refusing a motion to strike out certain costs taxed in favor of plaintiff, defendant appeals. Affirmed.
    Argued before MAYHAM, P. J., and PUTNAM and HERRICK, JJ.
    George H. Stevens, for appellant.
    James C. Johnson, for respondent.
   MAYHAM, P. J.

The plaintiff recovered judgment in justice’s court for $77 and cost, frdm which the defendant appealed to the county court, and demanded a new trial. Before the justice filed his return, the appellant served on the respondent and his attorney an offer to allow judgment to be rendered in the appellate court for $30. This offer was not accepted, and no offer was made by the respondent. On the trial in the county court the respondent recovered a verdict for $55, on which judgment, was entered, with $57.31 cost, amounting in all to the sum of $112.31. On a motion for readjustment for cost the appellant objected to the allowance of cost to the respondent, but the same were readjusted by the clerk at $52.31. The appellant then moved in county court to strike "out the cost allowed by the clerk and inserted in the judgment, which motion was denied, and from the order denying that motion the appellant appeals.

The determination of the question on this appeal must depend upon the construction to be given to the various provisions of the Code of Civil Procedure relating to the subject, as we have not been referred by the learned counsel in their briefs to any case precisely like the one at bar. The sections of the Code which relate directly to the questions of cost on appeals in the county court where a retrial’is asked for in that court are sections 3070-3072. Section 3070 provides that within 15 days after service of notice of appeal either party may make an offer in writing to allow judgment to be taken in the appellate court for a specified sum, and, if the same be not accepted, the party on whom it is served will be liable for costs to his adversary, unless the recovery is more favorable to him than the offer. The only real effect of that offer is to entitle the party making it to costs if the recovery is less favorable to his adversary than the offer. When the offer is not accepted, and is not as favorable to the adverse' party as the result of the trial, the offer has no effect upon the question of costs. If this were not so, then .an offer, however, insufficient or inadequate, if not accepted, would deprive the successful party of costs. No such result can fairly be deduced from this section. An insufficient offer, not accepted, when the recovery exceeds the offer, leaves the case as if no offer had been made, and the successful party in that case is entitled to his costs. But if there be doubt as to the true interpretation of section 3070 standing alone, when read and construed in connection with section 3071, the legislative intent on this subject seems quite apparent. The latter section provides that, after the expiration of 10 days from the time of filing the justice’s return, the action is deemed an action at issue in the appellate court, and all proceedings therein, including the entry of judgment on the same, as if the action had been commenced in the appellate court, except as otherwise specially provided. When an appeal has reached the stage that it has become an issue in the appellate court to be tried and disposed of as an action originally commenced in that court, the rights of the parties upon the question of costs are governed by the provisions of law applicable to such original actions. In this case the recovery in the county court was for a sum sufficient to entitle the plaintiff to cost, if his action had been originally commenced in the county court, and he is therefore entitled, under the provisions of section 3071, to the full bill of costs in such an action. We think the order of the county court appealed from was correct, and should be affirmed.

Order affirmed, with $10 costs and printing disbursements.

PUTNAM, J., concurs. HERRICK, J., concurs in the result.  