
    Samuel Pruyn et al., Appl’ts, v. Eugene Lynch, Resp’t.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed May 24, 1887.)
    
    1. Practice—When Code of Civil Procedure does not take place of Code of Procedure—Code Civ. Pro., §§ 3349 and 3352—Laws 1880, chap. 245.
    It was the intention by the saving clauses in the Code of Civil Pro" cedure, sections 3349 and 3352, and of the repealing act, chapter 245, Laws 1880, section 3, to continue the provisions of the old Code with respect to actions and proceedings and the effect thereof to which the new Code by express words was made inapplicable.
    3. Same—Costs—Appeal from justice’s court—Code of Procedure, § 371.
    On the 1st of September, 1880, an appeal was pending in the county court in this action. Judgment had been obtained by the plaintiff in the justices’ court. The defendant had appealed to the county court and had demanded a new trial. In his notice of appeal the defendant claimed that the judgment should have been more favorable to him. No offer to allow" judgment under Code of Procedure, section 371. was made by either party within fifteen days thereafter. In May, 1886, the plaintiffs served an offer on defendant to allow judgment to be taken against them, wholly reversing the judgment without costs, which offer defendant refused to accept. The defendant failed to obtain a more favorable judgment than the plaintiffs offered them. JHeld, that the defendant must pay costs from the date of the offer to be taxed under the Code of Procedure.
    Appeal from an order of the special term, refusing costs to the plaintiffs and affirming the clerk’s taxation in favor of the defendant.
    On the 1st of September, 1880, an appea, was pending _n the county court in this action. Judgment had been obtained by the plaintiffs in the justices’ court for forty dollars and six cents damages and five dollars costs. The defendant had appealed to the county court and had demanded a new trial. In his notice of appeal the defendant claimed that the judgment should have been more favorable to him; in that it should have been against the defendant for only ten dollars arid costs; also that it should have been in defendant’s favor for costs. Ho offer to allow judgment was made by either party within fifteen days thereafter. In May, 1886, the plaintiffs served an offer on defendant to allow judgment to be taken against them wholly reversing the judgment without costs. Defendant refused to accept the offer. The action was then certified by the county judge to the supreme court and was tried at the circuit in September, 1886, when plaintiffs recovered a verdict for thirteen dollars and ninety-three cents. Each party claiming costs, they were awarded to the defendant.
    
      L. M. Brown, for app’lts; H. A. Howard, for resp’t.
   Landon, J.

As this action was commenced before September 1, 1880, the costs upon appeal are governed by the old and not by the new Code. Atkin v. Pitcher, 31 Hun, 352. It is remarked in this case that Garling v. Ladd (27 Hun, 112), holding that the new and not the old Code govverned the costs in a case like this, must be regarded as overruled by the court of appeals, in Matter of Weston (91 N. Y., 502). Be that as it may, a re-examination of the question convinces us that full force was not given to subdivision 11 of section 3347, Code Civ. Pro., in Garling v. Ladd. That subdivision provides: “ So much of chapters- * * 19 * * as regulates the proceedings to be taken in an action or special proceeding, and the effect thereof, applies only to an action or a special proceeding commenced on or after the first day of September, 1880.” Chapter 19 of the Code of Civil Procedure, regulates the proceedings to be taken in an action in a justices’ court, including appeals, and prescribes “the effect thereof” upon the right to costs, and hence cannot affect such right in this case. This subdivision also excludes so much of chapter 19 as regulates the proceedings in this action. Such proceedings must therefore be regulated by the old Code, or he without statutory regulation. ' It was undoubtedly the intention by the saving clauses in the Code of Civil Procedure, §§ 3349, 3352, and of the repealing act, chap. 245, Laws 1880, § 3, to continue the provisions of the old Code in force with respect to actions, and proceedings and the effect thereof, to which the new Code, by express words, was made inapplicable.

The plaintiffs did not accept the privilege given them by section 371 of the old Code, to offer to correct the judgment in any of the particulars mentioned in the notice of appeal, but did avail themselves of the privilege given them by subdivision 5 of section 366 of the old Code. This subdivision provides'that “either party may, at any time before trial, serve upon the opposite party an offer in writing to allow' judgment to be taken against him * * to the effect in such offer specified, and with or without costs.” The section further provides that in case the party to whom such offer be made shall not accept it, ana shall fail to obtain' judgment more favorable to him than the judgment offered, he “shall not recover costs, but must pay the other party’s costs from the date of the service of the offer.”

Here the appellants failed to obtain a more favorable judgment than the respondents offered them. The respondent offered in effect to waive all recovery, and recovered $13.93. We must compare results without including costs in order to determine which party is entitled to costs.

It follows that the appellant “ shall not recover costs but must pay tho other party’s costs from the date of the service of the offer,” namely, May 11, 1886.

The same result would follow, if we give force to the proceedings taken under the old Code before September 1, . 1880, and regard the new Code as applicable to the subsequent practice and the respondent’s offer of judgment made under section 3072.

The order of the special term is reversed with ten dollars ■costs and printing disbursements, and costs of the appeal in the court below are allowed the plaintiffs from May 11, 1886, to be taxed under the Code of Procedure.

Parker, J., concurs; Learned, P. J., not acting.  