
    JAMES H. BATES, Respondent, v. DUDLEY H. NORRIS, Appellant.
    
      Costs under §§ 3228, sub. 4, on recovery of less than $50—Reduction of claim by payments after action brought—Practice—Error of referee in directing judgment for costs.
    
    Plaintiffs’ right to costs, under § 3228, sub. 4, Code Civ. Proe., depends upon the amount of ■ the recovery, and not on the amount due at the commencement of the action; and where payments since the beginning of the action are proved, reducing the recovery to less than fifty dollars, plaintiff may not have costs unless awarded by the order allowing the supplemental answer setting up said payments, or unless his right thereto has been preserved by stipulation valid under General Rule 11.
    
      Where the judgment entered follows the report, the proper mode of reviewing an error of the referee, e. g. in directing judgment for costs on a recovery of less than fifty dollars, is by appeal, and not by motion to vacate the judgment.
    . In this case, court, on an appeal from an order of the special term, directing the clerk to tax full costs for plaintiff as though the recovery were for fifty dollars, ordered that the clerk disallow said bill of costs and strike the same from the judgment.
    Before Sedgwick, Ch. J., Freedman and Ingraham, JJ.
    
      Decided January 3, 1888.
    Appeal from an order denying defendant’s motion to set aside the judgment entered on the report of a referee; and also' appeal from an order directing the clerk to readjust the bill of costs presented by the plaintiff, and to allow plaintiff full costs as though the recovery had been for the recovery of fifty dollars or more.
    The facts appear in the opinion.
    
      Wyatt & Trimble, for appellant:—
    I. Plaintiff having recovered less than $50 is not entitled to costs. § 3228, sub. 4, Code Civ. Proc. That the action was commenced to recover more than fifty dollars does not affect the question. He must recover more than fifty dollars. He chose to accept payment, and proved a portion of such payment before the referee, and recovered less than fifty dollars. The defendant, and not plaintiff, was entibled to costs.. Rice v. Childs, 28 Hun 303; Brown v. Richardson, 7 Rob. 57; Bendit v. Annesly, 27 How. Pr. 184; Keeler v. Van Wie, 49 Ib. 97. The fact that the referee directed judgment for costs cannot help the plaintiff; the former had no power to allow or disallow costs. His direction should have had no effect. Fuller v. Conde, 47 N. Y. 90; Benedict v. Hale, 4 Civ. Proe. 316 ; Lanz v. Trout, 46 How. Pr. 94; Sturges v. Spofford, 58 N. Y. 103; Broadway v. Scott, 31 Hun 378.
    II. There is no agreement proved to pay full costs. Plaintiff claims that defendant agreed to pay full costs; in other words, that the latter having paid $119 on a claim of $92.56, promised at a time when the taxable costs at the greatest were $15 to pay about $85; this is simply preposterous, and is clearly and fully denied. The burden of proving t;hat the payment was made without prejudice to his right to costs, was with plaintiff; in this he fails. The order giving leave to serve a supplemental answrer is significant on the question of this alleged agreement, if there was such an agreement, why was the motion granted, with ten dollars costs to abide the event.
    III. If there was any agreement, it must be held to apply to only such costs as could at the time of the alleged agreement be taxed. Latham v. Bliss, 6 Duer 661; O’Keefe v. Shipherd, 23 Hun 171; Warfield v. Walters, 30 Barb. 395.
    IY. Any agreement or understanding to pay costs is denied by defendant. It is not pretended .or claimed that the agreement is in writing or reduced to the form of an order. It is therefore a very proper case for the application of Rule 11 of the General Rules of Practice. Mason & Hamlin Organ Co. v. Pugsley, 19 Hun 232.
    V. The motion to set aside the judgment was the proper remedy. There was nothing due plaintiff, and defendant had the right to show this, and set the judgment aside. Even allowing that $166 was due, the motion to set aside the judgment was proper. Jones v. Cook, 11 Hun 230; Broadway v. Scott, 31 Ib. 378; Black v. O’Brien, 23 Ib. 82; Leonard v. Columbia Steam Navigation Co.. 84 N. Y. 55; Binsse v. Wood, 37 Ib. 526 ; Hammond v. Morgan, 101 Ib. 179 ; Syms v. Mayor, 105 Ib. 153; Sugden v. Hughes, 27 Hun 373. The judge below, in his opinion, states that the question should have been presented on appeal from the judgment. The learned judge overlooked the fact that an appeal would not lie from the judgment which had been taken by default, the hearing before the referee being by default. Stoughton v. Lewis, 1 How. Pr. N. S., 98 N. Y. 331; Innes v. Russell, 58 N. Y. 388 ; Flake v. Van Wagenen. 54 Ib. 25; James v. Shea, 28 Hun 74; 98 N. Y. 625.
    
      Philip Carpenter, for respondent:
    I. The judgment cannot be vacated upon the ground that costs were improperly allowed. The defendant’s rights in this regard can all be settled upon his appeal from the order directing the clerk to tax costs. Rice v. Child, 28 Hun 303. If the judgment can be disturbed at all for an error of the referee in directing judgment for costs, it must be by appeal from the judgment and cannot be done on a motion to vacate. The error is one of law. “The report stands as the decision of the court.” Code Civ. Proc. § 1228.
    II. The order directing the clerk to tax full costs was properly granted, because the original claim was for $92, and was only reduced to less than $50 by payments after the action was commenced, and these payments were made by the defendant and accepted by the plaintiff, with the distinct understanding that they were in no way to affect the question of costs; that the sums “paid were to be credited upon the full amount of debt and costs; ” that “ the defendant should pay the costs.” Rice v. Child, 28 Hun 303. Rule 11 has no application where a party has been led to rely on the verbal stipulation to his disadvantage. Court Rules (Hun, 1884), p. 89, notes (8) and (9), and cases cited; People v. Stephens, 52 N. Y. 306. Again, this agreement was not “ in respect to the proceedings in a cause ” within the meaning of Rule 11. It was simply in reference to the receipt of money in settlement of the cause of action and costs.
   By the Court.—Ingraham, J.

We do not think that any ground was presented that would justify the court in setting aside the judgment entered in this action. The judgment follows the referee’s report; if the referee erred, the proper method of review was by appeal. The order denying the motion to set aside the judgment must therefore be affirmed with ten dollars costs, and disbursements.

The defendant also appeals from an order of the special term directing the clerk to readjust the bill of costs presented by the plaintiff, and to allow the plaintiff full costs, as though the recovery had been for fifty dollars or more.

The complaint in the action demanded judgment for a sum of money only, and the right to costs is governed by subdivision 4 of section 3228 of the Code. . It is there provided that the plaintiff is not entitled to costs, unless he recovers the sum of fifty dollars or more. In this action the report of the referee found, as a conclusion of law, that at the date of the report the defendant was indebted to the plaintiff in the sum of one dollar and sixty-six cents, with interest from the 15th day of June, 1887, and on that report judgment was entered for the plaintiff for that amount.

Under the provisions of the Code above mentioned, the plaintiff would not be entitled to costs. The fact that at the commencement of the action the plaintiff’s demand was greater than fifty dollars does not entitle plaintiff to costs. The section referred to makes the right to costs depend upon the amount of the recovery; not on the amount due at the commencement of the action, and as the provision is mandatory, neither the court nor the referee has power to give the plaintiff costs, in such an action, unless the recovery exceeds fifty dollars. The provision in the report of the referee that plaintiff should have judgment, with costs, was void, and did not authorize the court or clerk to enter judgment for costs.

Plaintiff could have insisted upon his costs as a condition of leave to serve a supplemental answer, setting up the payments since the commencement of the action. Having failed to obtain such a provision in that order, his right to costs depended upon the amount of his recovery. Nor can the courts enforce a verbal stipulation that the payments made on account of the demand set up in the complaint should not affect the right of the plaintiff to his costs. If the stipulation was that the judgment should award the plaintiff costs, notwithstanding the recovery was less than fifty dollars, it was within the provision of Rule 11, of the General Rules of practice and could not be enforced unless in writing. If it was an agreement outside the proceeding in the action, it cannot affect the right of the plaintiff to costs in the action, as that depends upon the amount of the recovery.

Defendant not having applied for costs, no question is presented as to his right to costs as against the plaintiff.

The order appealed from must be reversed, and the clerk directed to disallow the plaintiff’s bill of costs, and to strike the same out of the judgment, limiting the amount recovered by the judgment to the amount found due by the referee, with ten dollars costs, and disbursements, to the appellant.

Sedgwick, Ch. J., and Freedman, J., concurred.  