
    The People of the State of New York, Respondent, v. Julius Strauss and Others, Appellants.
    ■ Action for a penalty under §200 — The People, under a nerdict for §25, are entitled to costs.
    
    Section 3228 of the Code of Civil Procedure,, as amended by chapter 110 of the Laws of 1898, providing, “ The plaintiff is entitled to costs, of course, upon the rendering of a final judgment in his favor, in either of the following actions: * * * 3. An action specified in subdivision first, third, fourth or fifth of section twenty-eight hundred and sixty-three of this act. But if, in an action to recover damages for an assault, battery, false imprisonment, libel, slander, criminal conversation, seduction or malicious prosecution, or a fine or penalty in which the People of the State are a party, the plaintiff recovers less than fifty dollars damages, the amount of his cost can not exceed the damages,” is applicable to an action, in which a verdict is recovered for §25, brought by the People of the State of New York to recover a" fine or penalty of less than §200, of which a justice of the peace would have jurisdiction under subdivision • 1 of section 2863 of the Code of Civil Procedure.
    Appeal by the defendants, Julius Strauss and others, from án order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York 'on the 24th day of November, 1899, denying the defendants’ motion for a retaxation of the costs.
    
      Emanuel Jacobus, for the appellants.
    
      Leonard, D. Baldwin, for the respondent.
   Barrett, J.:

The action was for a penalty of $100. The plaintiff had a verdict for $25. Upon that the clerk taxed the plaintiff’s costs at $25. Thereupon the defendants moved for a retaxation, claiming that, as the action was for a penalty less than. $200, and consequently within the jurisdiction conferred upon a justice of the peace by section 2863, subdivision 1, of the Code of Civil Procedure, the. plaintiff was not entitled to costs, but that they were. The motion was denied, and the clerk’s ruling sustained, upon the amendment to subdivision 3 of section 3228 of the Code of Civil Procedure, enacted in 1898 (Chap. 110). This amendment consists of the words italicised in the following extract from the section : “ The plaintiff is entitled to .costs, of course, upon the rendering of a final judgment in Ins favor, in either of the following actions: * * * 3. An action specified in subdivision first, third, fourth or fifth of section twenty-eight hundred and sixty-three of this act. But if, in an action to recover damages for an 'assault, battery* false imprisonment, libel, slander, criminal conversation, seduction or malicious prosecution, or a fme or penalty in which the People of the State a/re a party, the plaintiff recovers less than fifty dollars damages, the amount of his cost can not exceed the damages.” It will be observed that the amendment is not confined to an action specified in subdivision 1 of section 2863. Referring to the latter subdivision, we find that it reads as follows: “ 1. Where the People of the State are a party, except for one or more fines or penalties, not exceeding two hundred dollars.” The plaintiff claims that, as the present action was literally within this 1st subdivision of section 2863, it is entitled to costs, of course. .It is, they say* an action where the People are a party, and it is for a penalty not exceeding $200. The defendants, however, insist that, as the subdivision in question does not profess to give an independent characterization of an action, but simply enumerates the actions of ivhicli a justice of the peace cannot take cognizance, the intention was to provide that the plaintiff should be entitled to costs, of course, only in an action where the People are a party, and the penalties sued for are $200 or more.

Without passing upon these respective contentions, we think the case is covered by the amendment of 1898, and that the clerk and the Special Term were right in their construction and in the effect, which they gave to it. This amendment clearly places an action for a fine or penalty in which the People of the State are a party in the same category — with respect to costs — as an action to recover damages for an assault, battery, false imprisonment, libel, slander, criminal conversation, seduction or malicious prosecution. It was thus the legislative understanding and construction that, but for the amendment, the People, in an action for a fine or penalty, would be entitled to full costs, regardless of the sum sued for. The intention was to limit the costs of any such action (whether for less or more than $200), brought by the People, to the sum awarded by the jury, when the verdict is for less than $50. If the intention had been to limit the amendment to a recovery of less than $50 in an action brought for one or more fines or penalties amounting to or.exceeding $W0, the limitation would not have been left to debatable implication or doubtful construction, but would have been expressed in distinct terms. Instead of that, we have here language broad enough to include any action to recover damages for “a fine or penalty in which the -People of the State are a party.”

This view is in harmony with the legislation which the present action was brought to enforce.— namely, the Agricultural Law (Laws of 1893, chap. 338), and also with similar legislation upon kindred subjects. Hone of the penalties imposed by the Agricultural Act exceed $100; yet provision is made for. an injunction pendente lite¿ and. also to accompany the final judgment (§ 10). These injunctions are to restrain further violations of the provisions .of the act. They contemplate effective procedure in the Supreme -Court, even when the penalty sued for is less than $200. Upon the defendant’s construction of the amendment, the People would, in the enforcement of the law, be frequently deprived of the arm of equity ; and this would be a serious deprivation, for it might be most important,upon proof of a single violation, to restrain further transgression. Certainly the Commissioner of Agriculture could not sensibly come into a court of record exercising equity powers, in a case where, if successful, his success would be turned into practical defeat by an-award of costs to the defendant greater than his recovery.- It was, doubtless; to set all such questions at rest, and also to provide a reasonable limitation upon full costs where the-People’s recovery is small, that this amendment was passed. It thus enables the Commissioner of- Agriculture and other officers intrusted with similar powers to- enforce the law in an effective manner, and yet it imposes no undue burden upon those who are guilty of but petty violations.

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

Van Brunt, P. J., Patterson, O’Brien and McLaughlin, .JJ., concurred.

Order affirmed, with ten dollars costs and disbursements. ■  