
    James D. Seymour, Respondent, v. Albert G. Wheeler Jr., Appellant.
    Second Department,
    March 31, 1910.
    Costs — action in Supreme Court, county of Hew York, which could have been tried in City Court — section 3238, Code of Civil Procedure, con-; strued — change of venue to other county for convenience of witnesses.
    Subdivision 5 of section 3328 of the Code of Civil Procedure, denying costs to a plaintiff unless he recover - over $500 in an action brought 'in ,tlie Supreme Court, .county of New York, against a defendant served-in said county; if the action could have been brought,- except for the amount claimed, in the City Court of said-city, was designed to relieve, the congested calendars of .the-Supreme Court in said county, and should he construed in the -light of -its purpose.
    The words “triable in the county of New York,” as used in said section, refer not to conditions as they exist when the action is brought,-but to the conditions existing when the issues are tried.. , ; .
    Thus, where the venue of an action in the Supreme Court against a person served in the county of New York was originally laid, in Westchester county, but after being changed to New York county at the defendant’s instance was again changed to Westchester county for the convenience of witnesses and’ there ’ tried,, the plaintiff is entitled to costs, although he recovered less than $500, even though the action could have been brought in the’ City Court. ■ This,
    ' because the object of the section was accomplished, as the Supreme Court in. New York county was not burdened with the trial. ' .
    Appeal by the defendant, Albert Gr. Wheeler, Jr.,.from an order, of the Supreme-Court, made at the Westchester Special Term and entered-in the office of the clerk of the county of Westchester on . the 5th day of January, 1910, directing the clerk to tax .costs in favor of the plaintiff, .
    
      Leon Krónféld,. for the appellant.
    
      Frederick W. Sherman, for the respondent.
   Burr, J.:

By subdivision 5 of section 3228 of the Code of Civil Procedure ■ (added by Laws of 1904, chap. 557) it is provided that “ In all actions hereafter brought in the Supreme Court, triable in the county of Hew York, * * * which could have been brought, except for.the amount claimed therein, in the City Court of the City of Hew York * * and in which the defendant shall have been personally, -served with process within the counties of Hew York ' * ■ * "* 'the iilaintiff shall recover no costs'or disbursements unless he shall recover five hundred dollars or more.” Plaintiff’s place of residence was distant about four miles from White Plains, the county seat of Westchester county, but was,in the State-of Connecticut.' ’ The' action was brought to recover damages sustained by him through being bitten by defendant’s dog. Defendant resided in the county of Hew York and was served with a summons therein. The action could have been brought in the City Court of Hew York. When the action was commenced plaintiff named in the summons and complaint Westchester county as the pláce of trial thereof. Defendant insisting upon his Statutory right (Code Civ. Pfoc. §§ 984-986), the place'of trial was changed to Hew York county. Thereupon plaintiff moved that it be changed back to Westchester county for the convenience of witnesses, and that motion was granted. On the trial plaintiff recovered a verdict for $125. A bill of costs, with notice of taxation before the county clerk, was served on defendant’s attorney, and on the day named therein the clerk refused to tax said bill or allow plaintiff any cost's on the ground that- by force of the provisions of the Code above referred to he was not entitled to the same. A motion was thereupon made for an order compelling the -clerk to tax such costs, and from the order granting said motion this appeal is taken.

Plaintiff’s right to costs depends upon the construction to be put upon the words triable in the county of Hew York ” in the act in question. The purpose of the statute was to relieve the congested calendars of the Supreme Court in Hew York county by compelling, so far as practicable, actions to be brought iii the City Court of Hew York if within its jurisdiction. ' (Patterson v. Woodbury Derm. Inst., 117 App. Div. 600.) In constructing its language the evil sought to be remedied must be kept in mind. (Endl. Interp. Stat. § 27.) The Words “ triable in the county of Hew York” may refer to the conditions as they existed when the action was brought, or to the conditions as they existed when the issues were tried: We think that the latter is the true construction. When the action was commenced in the Supreme Court it wa's'not only possible to try the same in the county of Hew York, but there was no other county in the State in which at tlrat time, as matter of right, plaintiff could compel defendant to "answer to his claims. (Code Civ. Proc; § 984:) If, however, Westchester county had been- named as the place of trial, in. the absence of objection by defendant, the action would have been triable there. (Code Civ. Proc. §, 985.) If this had been the course followed, we think no one would claim that the provisions of subdivision 5 of. section 3228 of the Code of Civil Procedure applied. When by order the place of trial was changed to Westchester county, the direction of the court stood in place of defendant’s consent. Thereafter all subsequent'proceedings must be had “in the county to 'which the change is made, the same as if it had been designated in the complaint as the place of trial.” (Code Civ. Proc. § 988.) Trial of the issues and the taxation of costs are subsequent proceedings. The words “ the same as if it had been designated ” are equivalent to “ the same as if it had been properly , or originally designated.” A different construction might lead to this result: A plaintiff resident in the county of flew York might bring an action in the Supreme Court against a defendant resident therein, naming that county as the place of trial. For the convenience of witnesses or to promote the ends of justice, or because an impartial trial could not 'there be1 had, defendant might secure an order removing the case to another and distant county. (Code Civ. Proc.-§ 987.) The effect of this would -be to relieve-the congestion of the calendars of the county originally named as effectually as though, the action had been brought in the City Court of Hew York. To hold under such circumstances that a verdict for plaintiff, recovered in the county to.which the action liad been removed, for a less sum than $500, deprived him of his right to costs, would'be sacrificing the spirit of. the statute to its.letter. It may be urged that by force of the same reasoning if a resident of Erie county should begin an action in the Supreme Court against a resident Of Hew York comity, naming the former as the place of. trial, and on defendant’s motion the venue were changed to JSTew York county, an unjust burden might be placed on the plaintiff and an undue advantage awarded, to defendant. The difficulty is more, ¡apparent than real. Changing the place of trial for any of the. reasons named in section . 987 of the Code is somewhat in the nature of a favor, and it is Quite within the power of the court granting the motion, to impose as a condition the waiver by defendant of the rights to which he would otherwise be entitled under the statute.

The order appealed from should be affirmed, with, ten dollars costs and disbursements.

Jenks, Thomas, Rich and Carr, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.  