Burgdorf v. Brooklyn, Queens County & Suburban Railroad

Majority

p. 253

Gustave Burgdorf, Respondent, v. Brooklyn, Queens County and Suburban Railroad Company, Appellant.

Second Department,

January 22, 1909.

Headnote

Costs — section 3228, Code Civil Procedure, construed — right to costs where venue is laid in Supreme Court, county of Queens, but defendant served in Kings county.

In subdivision 5 of section 3228 of the Code of Civil Procedure, providing that in all actions brought in the Supreme Court triable in the county of New York or Kings, which, except for the amount claimed, could have been brought in the County Court of Kings county, the plaintiff shall not have costs unless he recover over §500, the word “triable” means place of trial as indicated by the venue. Hence, where the venue of an action to recover §5,000 damages for personal injuries was laid in the county of Queens and there tried, the plaintiff , is entitled to costs, although the defendant was personally served in the county of Kings, for the action was triable in Queéns.

Appeal by the defendant, the Brooklyn, Queens County and Suburban Railroad Company, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Queens on the 1st day of December, 1908.

D. A. Marsh [George D. Yeomans with him on the brief], for the appellant.

Frederick S. Martyn, for the respondent.

The defendant appeals from an order of the Special Term denying its motion for an order disallowing the taxation of costs by the plaintiff upon his verdict for $100, rendered in his action wherein his claim was for $5,000 damages for personal injuries, caused by the defendant’s negligence. The motion was made under subdivision 5 of section 3228 of the Code of Civil Procedure.

The plaintiff laid the venue in the Supreme Court in the county of Queens and there the action was tried. But the defendant shows that it was served personally with process in the county of Kings, and its contention is that as the action could have been brought in the County Court of Kings county save for the amount of the claim, the

p. 254

said statute applies. We held in Waldstreicher v. Solomon ( 127 App. Div. 364 ) that each county stands separate in the application of the statute. I see no reason for rescission.. I think that the word “ triable ” as used in this statute means the place of trial as indicated by the venue; in' other words, this action was triable in the county of Queens. (Chubbuck v. Morrison, 6 How. Pr. 367 ; Askins v. Hearns, 3 Abb. Pr. 184 ; Bangs v. Selden, 13 How. Pr. 374 .)

The order must be affirmed, with $10 costs and disbursements.

Hirschberg, P. J., Woodward, Gaynor and Miller, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements. •

Cases cited

Chubbuck v. Morrison 6 How. Pr. 367 N.Y. Sup. Ct. p. 254
Askins v. Hearns 3 Abb. Pr. 184 N.Y. Sup. Ct. p. 254
Bangs v. Selden 13 How. Pr. 374 N.Y. Sup. Ct. p. 254