
    Michael Hausauer and Others, Respondents, v. W. J. Machawicz (whose first name is unknown to plaintiffs), Defendant, Impleaded, with Julia Merkwa, Appellant.
    
      ■Coats in an action of replevin — acceptance of an offer of judgment — the costs cannot exceed the amount for which a money judgment could be entered thereon—when the property only and not damages is obtainable under an offer.
    
    Where the complaint, in an action brought in the Supreme Court to recover certain chattels, demands that their value be fixed at §200 and the damages for their detention at §100, the acceptance by the plaintiffs of the defendant’s offer of judgment “ for the recovery and possession of the following described chattel, viz.: One glass show case, mentioned and described in the complaint lierein, together with two dollars damages for the detention thereof, with costs,” entitles the plaintiffs to two dollars costs only. (Code Civ. Proc. § 3228, stibd. 2.)
    
      Semble, that under the offer the plaintiffs were entitled to the return of the property, but to nothing in lieu thereof if the property could not be obtained.
    Appeal by the defendant, Julia Merkwa, from an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Erie on the 14th day of June, 1900, directing a retaxation of the plaintiffs’ costs at the amount provided for in section 3251 of the Code of Civil Procedure.
    The plaintiffs brought this action in the Supreme Court to recover a large number of chattels and asked that the value thereof be fixed fit $200, and the damages for detention at $100. Among the long list of articles enumerated is a glass showcase. The defendant Merkwa tendered an offer of judgment which, aside, from the title of the action and the affidavit of the defendant, is as follows:
    
      “ Sib.—■ Please take notice that the defendant Julia Merlcwa, above named, hereby offers to allow judgment to be taken against her in the above-entitled action for the recovery and possession of the following described chattel, viz.: One glass show case, mentioned and described in the complaint herein, together with two dollars damages for the detention thereof, with costs.
    “Dated Buffalo, TÑT. Y. April 30, 1900.
    her
    “JULIA X MERKWA.
    mark.
    “ To M. A. Geabof,
    “ Plaintiff?s Attorney.”
    This was duly accepted in writing by the plaintiffs, and judgment was entered for the recovery of the property- with the two dollars damages for the detention thereof, together with a full bill of costs and disbursements, amounting to fifty-eight dollars and ninety-two cents. On a retaxatipn the clerk readjusted the costs at two dollars; but the Special Term ordered the full bill to be retaxed, which was done, at forty-five dollars and ninety-two cents.
    
      Charles F. Tabor, for the appellant.
    
      M. A. Gearon, for the respondents.
   Spring, J.:

Costs are entirely a creature of the statute and their imposition must,-therefore, rest upon some specific statutory warrant. ' (Equitable Life Assurance Society v. Hughes, 125 N. Y. 106, 108.)

Section 3228, subdivision 2, of the Code of Civil Procedure provides for the allowance of costs of course to the plaintiff in a final-jndg- ■ ment for the recovery of a chattel. It makes the adjustment of the costs depend upon the value of the chattel and the damages awarded as fixed at the trial. If such value with the damages is less than fifty dollars then the costs cannot exceed the amount thereof. This constitutes the only authority for the allowance of costs in an action to recover a chattel, and in construing that subdivision the courts with considerable uniformity have held that the fixing of the value of the property or of the damages is essential before a plaintiff is ■ entitled to any costs. (Herman v. Girvin, 8 App. Div. 419; Lockwood v. Waldorf, 91 Hun, 281; Wolff v. Moses, 6 N. Y. Ann. Cas. [Benj.] 163; Rapid Safety Filter Co. v. Wyckoff, 20 Misc. Rep. 429.)

If upon the trial the plaintiff establishes his right to recover the property a judgment may be entered accordingly. Under the offer in this case the plaintiffs upon the entry of their judgment were entitled to the return of the property; but to nothing in lieu of the chattel if that could not be obtained. As was said in Hammond v. Morgan (101 N. Y. 179, at p. 186): “A judgment in replevin may undoubtedly be entered, although the jury has non assessed any damages or found the value of the property. _ In that case the judgment would simply award the property to the plaintiff, to be enforced by execution, and if the return of the property could not be thus obtained, the judgment would be unavailing.”

The defendant fixed no value to the property in the offer, and by limiting the damages to its detention she restricted the costs to that sum as that was the only money judgment which could be awarded. The offer of the defendant would have been of little avail to her had the action proceeded. If the value fixed upon the trial with the damages had been below fifty dollars, costs equal to the amount of the recovery would have been allowed. If in excess of that sum, full costs would follow; that is, the offer would have been of no significance in the determination of the costs. The plaintiffs by their acceptance are entitled to the return of the property with the prescribed damages; but they must also accept. that relief with the limitation as to costs which are only allowable uj>on fixed values or damages. The offer to allow judgment with costs must be taken to have been made with the expectation that only the costs which follow the money judgment of two dollars could be imposed.

While the offer was probably insufficient and would have been no aid to the defendant, yet, when accepted by the plaintiffs, it became operative to authorize the judgment, but the costs to be imposed must come within the strict terms of the offer as made.

All concurred.

Order reversed, with ten dollars costs and disbursements of this appeal, and the retaxation pursuant to said order is set aside and the original retaxation of costs at two dollars is affirmed.  