
    BLANK against WESTCOTT.
    
      Supreme Court, First District; General Term,
    November, 1869.
    Costs, when Allowed oe Course. —Construction oe Statute.
    The right of a plaintiff to costs of course, upon succeeding in an action in the supreme court for recovery of money, is limited to cases where he recovers fifty dollars or more, notwithstanding the amount claimed in the complaint may have been too great to allow court of justice of the peace to take jurisdiction of the action.
    The third subdivision of section 304 of the Code of Procedure, as amended in 1862,-—which allows costs of course to plaintiff “ upon a recovery in the actions of which' a court of justice of the peace has no jurisdiction,” is to be construed as referring only to the cases'which are specifically designated by section 54 of the Code, as those of which no justice of the peace shall have cognizance.
    Appeal from an order denying a motion to vacate judgment.
    This action was brought by Bart M. Blank, against Charles S. Westcott, upon a money demand on contract, and the amount of the plaintiff’s claim was two hundred and forty-five dollars. On the trial the jury rendered a verdict for the plaintiff for forty-nine dollars ; whereupon the clerk entered a judgment for defendant for his costs, and denied the application of the plaintiff to enter judgment for the amount of the verdict with costs, on the ground that the recovery was less than fifty dollars. 15
    
      The plaintiff then moved at chambers for an order vacating the judgment, and directing that the clerk enter judgment for the amount of plaintiff’s verdict and costs. The motion was denied, ,and plaintiff appealed.
    
      Edward J. Maxwell, for the plaintiff, appellant.
    I. It is provided by section 304 of the Code of Procedure, that “costs shall be allowed of course to the plaintiff upon a recovery, in the following cases...... 3. In the actions of which a’court of justice of the peace has no jurisdiction.” This case comes within the subdivision and section referred to. A court of justice -of the peace could have no jurisdictiction of this •case : 1. Because the amount of the plaintiff’s claim was more than two hundred dollars. Section 53 oí the Code provides as follows: “justices of the peace shall have civil jurisdiction in the following actions, and no others: 1. In actions arising on contracts for the recovery of money only, if the sum claimed does not exceed two hundred dollars.” Prior to 1862, when section 304 was amended, that section read as follows, in the third subdivision: “In the actions of which, according to section 54, a court of justice of the peace has no jurisdiction.” By the amendment ■ of this section in 1862, the words in italics were omitted. All the cases, and they are numerous, which hold that costs cannot go to the plaintiff in such actions 'without he recover fifty dollars, were decided before this amendment, and there can be no question as to their •correctness, as section 304 then stood. Since the amend■ment there has been no disposition of the question, at least none can be found. The only approach to a determination of the question was made in the case of Laughran v. Dillon, 6 Duer, 697; affirming 15 How. Pr., 285, which was before the amendment. 2. A court of justice of the peace could not have had jurisdiction of this case, because the mutual accounts of the parties texceeded four hundred dollars (§ 54, subd. 4 ; Stilwell v. Staples, 5 Duer, 691 ; Glacken v. Seller, 52 Barb., 
      147 ; Crim v. Cronkite, 15 How. Pr., 250 ; 18 Id., 177 ; 5 Abb. Pr., 64 ; 8 Id., 35 ; 3 Denio, 267).
    II. If it should be claimed that we are to be' governed in actions of this nature by subdivision 4 of section 304, it will be a sufficient answer to that, to say that if this were the case, it would follow that in no action for a money demand on contract could the plaintiff recover costs, unless he recover fifty dollars. Such ' a theory would be in direct conflict with all the cases familiar to the court, some of which are above cited, where the plaintiff did recover costs, when the recovery was less than fifty dollars, in an action for recovery of money only. The subdivision, which it is claimed on the other side, should govern us here, provides that costs should go to the plaintiff upon a recovery of money only to the amount of fifty dollars. It is maintained that we are not to be governed by this section, for the courts have so decided, in saying that in certain cases, if the plaintiff does not recover fifty dollars he shall recover costs.
    III. But it is said that, admitting that we are to be governed by subdivision 3 of section 304, still the act in relation to district courts in the city of Few York (Laws of 1857, ch. 344) must be read with section 53 of the Code ; and as that act gives jurisdiction to such courts when the amount of the recovery is not more than two hundred and fifty dollars, it follows that it would have had jurisdiction of this case. It is unnecessary to discuss this question here. It was fully discussed in the case of Boston Mills v. Eull, 6 Abb. Pr. N. S., 319, and while.this court may not consider itself bound by the case as an authority, nevertheless the reasoning in that case cannot but commend itself to this court as sound. The question has again, however, been decided in the cases of Mills v. Winslow, 2 E. D. Smith, 18 ; 1 Id., 141; and Davis v. Hudson, 5 Abb. Pr., 64.
    
      Benedict & Boardman for the defendant, respondent.
   Cardozo, J.

It is a sound rule in expounding a statute to give it such a construction, if possible, as will secure meaning and effect to every part of it. Applying that doctrine to expound section 304 of the Code, there can be no difficulty in saying that the order below was right.

Section 304 of the Code was amended in 1862, and among other things the words, 6 ‘ according to section 54, ’ ’ were omitted from subdivision 3, and it is argued that omission gives the plaintiff the right to recover costs in every action on a money demand, if the amount claimed,—no matter what the recovery may be,—exceeds two hundred dollars. I think this is a mistake, and that, in fact, no change was made by the omission of the words above mentioned. The statute, fairly construed, means the same with or without those words, and they may well have been dropped as superfluous.

The Code has but one section, viz: 54, which specifies the cases of which courts of justices of the peace shall have no jurisdiction, and when the statute says that costs shall be allowed to the plaintiff in the actions of which a court of justice of the peace has no jurisdiction,

I think it only reasonable to say that it meant to refer to those cases which were specifically designated.

Any other construction would give a plaintiff costs in an action for money though he recovered but one dollar, if he only claimed more than two hundred dollars in his complaint, and such a construction would entirely destroy and render useless and nugatory the provision in subdivision 4, which make the right of the plaintiff to costs in an action for the recovery of money depend upon his recovering fifty dollars.

By construing subdivision 3 as referring to section 54, the whole statute has a sensible meaning and effect.

The order should be^affirmed with costs.

Cleeke and Sutherland, JJ., concurred.  