
    The People, on the relation of Clark and Farnham, vs. Onondaga Common Pleas.
    Where a plaintiff is nonsuited in an appeal cause, the defendant is entitled to recover only ¡57 costs exclusive of disbursements.
    Costs on appeal. A judgment was rendered against the relators in a justice’s court, for $39,36 damages and costs. They appealed to the Onondaga common pleas, and on the trial of the cause the plaintiff was nonsuited. The taxing officer refused to allow the relators more than seven dollars costs exclusive of disbursements ; and on an appeal, the common pleas confirmed the taxation. Application was now made for a mandamus to vacate that rule, and to direct (he allowance of a full bill of costs.
    
    
      J. Wilkinson, for relators,
    insisted that the proviso of the 39th section of the fifty dollar act, (Statutes, 6 vol. 296, c.) limiting the amount of costs to $7, in cases where the recovery does not exceed $25, does not apply to this case ; because here is no recovery within the meaning of the act, which provides for cases where there is a recovery of debt or damages, but where the amount is so small that the party ought not to have a full bill of costs. The case does not come within the proviso, and by the previous provisions of the same section, the relators are entitled to the costs of the appeal to be taxed. Had the plaintiff below, the appellee^ üuóeeeded, and recovered the same amount for which he obtained judgment before the justice, he would have been entitled to his full costs ; why should not the appellants, having succeeded in resiting the demand, recover their full costs 3
   By the Court,

Sutherland, J.

By the proviso of the statute, unless there is a recovery exceeding $25, the prevailing party is not entitled to costs exceeding seven dollars, exclusive of disbursements. Had the appellants recovered $24, their costs would have been limited to $7; and recovering nothing, they are entitled to no more than that sum.

Motion denied.  