
    G. P. Putnam’s Sons, Plaintiff, v. William P. Pickett, Defendant.
    (Supreme Court, New York Special Term,
    June, 1912.)
    Costs — awarding and enforcing payment of — when plaintiff entitled to — Code Civ. Pro. § 3228(5).
    Where a resident of Kings county, prior to the commencement of an action brought against him in the Supreme Court, notified the plaintiff’s attorneys that he had authorized his attorney, whose name and address he gave, to accept service in New York county of any papers which they might wish to serve in the matter, and tne plaintiff, a resident of New York county, recovers judgment for less than $500, it is not entitled to costs under section 3228(5) of the Code of Civil Procedure, as the action might have been commenced either in the City Court of the city of New York or the County Court of Kings county.
    Motion for a new taxation of costs.
    Sproull, Harmer & Sproull (Hugh M. Harmer, of counsel), for motion.
    Hugh Wintner, opposed.
   Giegerich, J.

This is a motion to review the refusal of this clerk to tax the plaintiff’s costs and disbursements. The action was brought upon a contract to recover the sum of $848.54. The plaintiff obtained a verdict for $441.38. The clerk refused to tax the plaintiff’s costs and disbursements, and from that ruling the plaintiff has appealed to this court. The plaintiff is a corporation having its principal place of business in the county of Hew York, while the defendant is a resident of the county of Kings and has an office for the practice of law in that county. It further appears that the defendant was frequently in the county of Hew York, and, furthermore, that he had prior to the institution of the action written to the plaintiff’s attorneys that he had authorized his attorney, whose name and address he gave to them, to accept service of any papers which they might wish to serve in the matter. Upon such facts I think it is clear that the plaintiff is entitled to no costs. Its attorneys insist that even though it be the fact that the action could have been brought in the County Court of Kings county, nevertheless the plaintiff, as a resident of Hew York county, ought not to be required to leave this county and sue in another county. In view of the defendant’s notice that he had authorized his attorney to accept.service in this county of any papers which the plaintiff’s attorneys might wish to serve in the matter the action might have been commenced in the City Court in this county. But even if there had been no such authority and notice given by the defendant under the decision made in Ponce De Leon v. Brooklyn Heights R. R. Co., 125 App. Div. 752, the plaintiff would have been equally without right to costs. There the same argument was made that a plaintiff is not obliged to go outside of the county of Hew York, but the court pointed out that the right to costs is purely a creation of the statute and authority therefor must be found in the statute or it does not exist. That case was decided in 1908> and in 1910 the statute (Code Civ. Pro., § 3228, subd. 5) was amended. The attorneys for the plaintiff claim that such amendment was made for the purpose of limiting the effect of the case cited, but I cannot discover any such purpose in the language of the amendment. As I construe the statute it still refuses costs to a plaintiff under such circumstances as are shown in this case. The motion is denied, with ten dollars costs.

Motion denied, with ten dollars costs.  