
    Herman Vogel, App’lt, v. Edward H. Schlueter, Resp’t.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 1, 1893.)
    
    Costs—Appeal.
    The provision of § 3070 of the Code, which determines the right to costs upon an offer in the , appellate court, has application also when the plaintiff appellant was defeated in the lower court, and obtains a more favorable judgment upon the appeal.
    Appeal from an order setting aside taxation of costs.
    
      Herman Vogel, app’lt, in person; Frank O’Brien, for resp’t.
   Dykman, J.

This action was commenced in a court of a justice ■of the peace for the recovery of damages for the wrongful conversion of personal property belonging to the plaintiff.

Upon the trial before a jury a verdict was rendered in favor of the defendant, and from the judgment entered upon that verdict the plaintiff appealed to the county court of Kings county where there was a new trial before a jury and the plaintiff recovered a verdict for $12.83.

Neither party made any offer to allow judgment after the appeal to the county court, which was taken July 17, 1891.

Upon this state of facts the plaintiff claimed full costs, which were allowed to him by the clerk.

Subsequently an application was made to the county judge of Kings county to set aside the taxation of such costs, and the motion was granted. From that order the plaintiff has appealed to this court.

The question is under the control of this statutory provision • “ If an offer is not made and the verdict, report or decision upon the appeal is more favorable to the appellant by the sum of ten dollars, than the verdict or decision in the court below * * * the appellant is entitled to recover costs upon the appeal.” Code of Civil Procedure, § 3070.

This case fits the statute and the statute meets the case and controls it, and under its provisions the appellant was entitled to full costs.

The plaintiff was unjustly defeated in the lower court when he liad a just claim, and he was compelled to appeal or suffer the loss of his claim and pay costs besides.

Upon the appeal he recovered a judgment more favorable to him by more than ten dollars.

While it may be true in strictness of language that the words “more favorable to the appellant,” imply that the judgment in the lower court was in his favor, we yet think the provision has application also when he was defeated in the lower court, and obtains a more favorable judgment upon the appeal. Such was the view of the court in the case of Vanderwerlcen v. Brown, 38 Hun, 234, and we concur in that view.

The order from which the appeal is taken should be reversed with ten dollars and disbursements, and the taxation of' costs by the clerk in favor of the appellant should be affirmed.  