
    (33 Misc. Rep. 728.)
    O’CONNOR v. UNION RY. CO.
    (Supreme Court, Special Term, New York County.
    January, 1901.)
    Costs— Statutes—Death—Nominal Damages.
    Code Civ. Proc. § 3228, subd. 3, declares that a plaintiff shall be entitled to costs on the rendering of judgment in his favor in any action under subdivision 3 of section 2863, but declares that in certain actions, not including one under section 1902, if plaintiff’s damages do not exceed $50 his costs shall not exceed his damages; and subdivision 4 declares that, in an action for a sum of money only, other than the actions specified in the previous subdivisions, plaintiff shall not be entitled to costs unless he recover over $50. An action for death, under section 1902, is one of the actions mentioned in section 2863, subd. 3. Held, that in an action under section 1902 it was improper to refuse to allow plaintiff a full bill of costs because she only recovered nominal damages.
    Action by Bridget O’Connor against the Union Railway Company. From the clerk’s refusal to tax costs in favor of plaintiff, she appeals. Taxation of full bill of costs ordered.
    
      Baggott & Ryall, for appellant.
    Hoadly, Lauterbach & Johnson, for respondent.
   TRUAX, J.

This is an action to recover damages for causing death by negligence. On the trial plaintiff recovered but six cents damages, and therefore the clerk refused to tax costs in favor of the plaintiff, and taxed a full bill of costs against the plaintiff. From this action of the clerk the plaintiff appeals.

Plaintiff is entitled to costs upon the rendering of a judgment in his favor in an action of this kind, by the express terms of subdivision 3 of section 3228 of the Code of Civil Procedure. By the terms of that subdivision, however, if plaintiff recovers less than $50 damages in an action to recover for an assault, battery, false imprisonment, slander, criminal conversation, seduction, or malicious prosecution, or a fine or penalty, in which the people of the state are a party, the amount of his costs cannot exceed his damages. These exceptions (except the one relating to a fine or penalty) are referred to in the third subdivision of section 2863, which limits the jurisdiction of a justice of the peace in certain cases. This last subdivision (3) also excepts an action brought under section 1902 of the Code, under which section this action was brought. How, if it was intended to except an action of this kind, it would have been mentioned in subdivision 3 of section 3228, along with the other exceptions mentioned in that section. Subdivision 4 of section 3228 provides, in effect, that in an action to recover a sum of money only, other than one of those specified in subdivisions 1, 2, and 3 of that section,-plaintiff shall not recover costs unless he recovers the sum of $50 or more. The defendant is entitled to costs in actions specified in section 3228 only when plaintiff is not entitled to them. The action of the clerk is overruled, and he is directed to tax a full bill of costs for plaintiff.

Ordered accordingly.  