
    Theodore McKuskie, App’lt, v. John Hendrickson, Resp’t.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 8, 1890)
    
    Costs—Appeal from justice’s court—Code Civ. Pro., § 3070.
    Plaintiff recovered judgment in justice’s court for thirty dollars damages * and nine dollars costs, from which defendant appealed and within fifteen days made an offer of judgment of five dollars which was not accepted. Ona new trial in county court plaintiff recovered judgment for thirly-five dollars. Held, that plaintiff was entitled to costs.
    Appeal from order vacating taxation of costs.
    On the 25th day of January, 1889, the plaintiff recovered a judgment against the defendant, injustice’s court, for a sum of money only, viz: Thirty dollars damages and nine and 20-100
    costs. The defendant duly appealed from such judgment to the county court of Queens county and demanded a new trial in the appellate court. Within fifteen days after service of the notice of appeal, the defendant served upon the plaintiff a written offer-to 'allow judgment to be rendered in the appellate court against him and in favor of the plaintiff for a specified sum, viz: Five
    dollars. The plaintiff did not accept the offer, nor did he make any offer. The action was re-tried in the appellate court on the 3d day of March, 1890, and the plaintiff obtained "a verdict for thirty-five dollars. Thereafter the clerk of Queens county, against the objections of the defendant, taxed the plaintiff's costs at $80.25, and docketed judgment against the defendant for $115.25. The county court, on motion of the defendant, vacated the taxation of costs, and reduced the judgment to thirty-five dollars.
    
      Henry A. Montfort, for app’lt; Harrison S. Moore, for resp’t.
   Barnard, P. J.

This action was tried before a court held by a justice of the peace and the plaintiff recovered a judgment for thirty dollars damages and $9.20 costs. The defendant appealed and demanded a new trial in the appellate court. Within fifteen days after the service of the notice of appeal the defendant offered to allow judgment for five dollars damages. The offer was not accepted. On the new trial the plaintiff recovered thirty-five dollars damages. The clerk taxed costs to the plaintiff and the county court set aside the taxation. The case seems a plain one under •§ 3070 of the Code. If an offer is made within the fifteen days after the service of the notice of appeal and not accepted the appellant must get a more favorable verdict to be entitled to costs of the appeal, “ otherwise the respondent is entitled to costs.” There are two sections which affect the question of costs upon appeals from justice’s judgment. One offer under § 3070 must be made before return and one under § 3072 after return filed. The first offer operates upon the entire costs of the appeal and the second only on the costs “ from the time of the offer ” which is not accepted and there is a failure to obtain a more favorable judgment. This offer comes within the § 3070. I presume that the affidavit does not show that the return was filed, but under either section the respondent was entitled to costs. The appellant did not reduce the recovery under § 3072 ; the appellant failed to receive a more favorable recovery and thus was not entitled to receive costs from date of the offer. The order setting, aside taxation should be reversed, with costs and disbursements, and the motion denied, with costs.

Dykman and Pratt, JJ., concur.  