
    Naumam v. Braun.
    
      (City Court of New York, Special Term.
    
    August 30, 1890.)
    Right to Costs.
    Under Code Civil Froc. N. Y. § 3228, subd. 4, which provides that plaintiff in an action for the recovery of money only is not entitled to costs unless he recovers §50 or more, and under section 3229, which awards the costs to defendant unless plaintiff is entitled to them, defendant in an action for goods sold and delivered for 8844.50 is entitled to costs where plaintiff admits that defendant is entitled to credits reducing plaintiff’s claim to §53, for which he demands judgment, but on the trial recovers less than §50.
    Action by Haumam against Braun for goods sold and delivered for $844.50. Plaintiff demanded judgment for only $53.12, admitting that defendant was entitled to credits for the balance. On the trial, plaintiff recovered $49.39, for which sum, with costs, he entered judgment. Defendant now moves for a vacation of the judgment on the ground that plaintiff was not entitled to costs. Code Civil Proc. N. Y. § 3228, subd. 4, provides that plaintiff is entitled to costs of course in an action “in which the complaint demands judgment for a sum of money only. But the plaintiff is not entitled to costs under this subdivision unless he recovers the sum of fifty dollars or more.” Section 3229 provides: “The defendant is entitled to costs, of course, upon the rendering of a final judgment in an action specified in the last section, unless the plaintiff is entitled to costs, as therein prescribed. ”
    
      Livingston & Olcott, for plaintiff.
    
      Langbein Bros. & Langbein, for defendant.
   Giegerich, J.

As the defendant, and not the plaintiff, is entitled to the taxable costs, (Walp v. Boyd, 2 N. Y. Supp. 735; Tompkins v. Greene, 21 Hun, 257, affirmed 82 N. Y. 619,) the motion to vacate the judgment entered herein on August 8, 1890, by the plaintiff for costs must be granted, with $10 costs.  