
    Frank Rhodes, Resp’t, v. Morris Carr, App’lt.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed July 5, 1895.)
    
    Costs — Appeal—New trial in county court.
    Upon an appeal from a justice’s judgment to the county court for a new trial therein, the plaintiff is not entitled to costs where he recovers a judgment for less than fifty dollars, in case no offer of judgment upon the appeal has been made.
    Appeal from an order, denying a motion for retaxation of costs.
    Plaintiff brought an action in the municipal court of the city of Syracuse, and recovered the sum of $38.71 damages. Defendant appealed to the county court of Onondaga county, where a trial was had, and a verdict was rendered for the plaintiff for the sum of $38. Judgment for that sum was entered, with $70.86 costs. A motion was made for retaxation, which was denied, and the taxation affirmed, without costs of the motion. “ No offer was made to take or allow judgment by either party thereto, as provided by sections 3070-3072 of the Code of Civil Procedure.”
    
      Kline, Shove & Ludington, for app’lt; Talbott & Collins, for resp’t.
   Hardin, P. J.

— Chapter 522 of the Laws of^l885 amended section 3070 of the Code of Civil Procedure. In the last part of the section are found these words:

“ If neither party make an offer, as provided herein, the party in whose favor the verdict, report or decision in the appellate court is given, shall be required to recover his costs upon the appeal. ”

That section falls under the construction in McKuskie v. Hendrickson, 128 N. Y. 555; 40 St. Rep. 619. In the course of the opinion it was said:

“ There is no provision in the Code giving the plaintiff costs in such a case against the defendant where the recovery is for less than $50, and no language was used indicating that such was the legislative intention. The only way in which plaintiff can secure his right to costs in such a case as this is by making an offer to take judgment for a sum specified, and then, if the defendant refuses to accept the offer, he will be liable to costs unless the recovery is more favorable to him than the offer. Here the plaintiff could have afforded to take the j ugdment in the county court for thirty dollars, or any other sum not exceeding thirty-five dollars, and could thus have secured his rights to costs.”

The rule laid down in the case from which the quotation has been made seems to apply to the case in hand, and the case was decided in 1891, subsequent to the decision made by this court in Sheehan v. Buller, 24 N. Y. Wkly. Dig. 168, in‘April, 1886, and .approved in Munson v. Curtis, 43 Hun,' 217, in January, 1887. Inasmuch as the plaintiff did not recover a sum sufficient to carry costs if the action had been brought originally in the county court, he is not entitled to recover costs entered in the judgment. Sherman v. Shisler, 6 Misc. Rep. 203. It seems to follow that the order of the county court is erroneous, and should be reversed.

Order reversed, with $10 costs and disbursements, and directions given to the clerk of Onondaga county to strike from the judgment the costs entered therein in favor of the plaintiff.

All concur.  