Brennan v. Fick — 108 N.Y.S. 1008

Majority

p. 1008

BRENNAN v. FICK et al.

(Supreme Court, Special Term, Erie County.

February Term, 1908.)

Headnote

Courts—Municipal Court—Additional Costs—Body Execution—Demand Before Commencement of Action.

Where, prior to an action by a domestic servant for services, plaintiff demanded §2.50, and the amount recovered was $2, the demand was not “just and reasonable,” within the provision of Buffalo Municipal Court Act, Laws 1891, p. 233, c. 105, § 458, as amended by Laws 1898, p. 195, c. 101, § 3, entitling plaintiff in such an action to additional costs and a body execution, where it appears that she made a personal, just, and reasonable demand for the amount claimed from the defendant prior to the commencement of the action.

Appeal from Municipal Court of Buffalo.

Action by Eva Brennan against Charles Fick and another. From a judgment of the Municipal Court of the city of Buffalo for plaintiff, without additional costs or body execution, plaintiff appeals. Submitted on agreed statement! Affirmed.

Robert W. Farrington, for appellant.

F. W. McIntyre, for respondent.

Plaintiff is entitled to additional costs, under the wages provisions of section 458 of the Municipal Court act (chapter 105, p. 233, Laws 1891, as amended by Laws 1898, p. 195, c. 101, § 3), only if it appears that she made “a personal, just and reasonable demand for the amount claimed from the defendant prior to the commencement of such action.” What is “a just and reasonable demand” must be determined in each case by the judge before whom the action was tried. Obviously the demand can be just and reasonable only where the recovery is equal to the demand or substantially so.

The amount demanded in this action ($2.50) was, in relation to the amount recovered ($2), neither just nor reasonable. Plaintiff demanded 25 per cent, more than she was entitled to. Parties should not be penalized in costs and made subject to body executions when they refuse'to accede to a demand for 25 per cent, in excess of what they owe, as subsequently established. A slight discrepancy between the demand and the recovery might not necessarily prevent the demand from being just and reasonable in all cases. A difference of 50 cents between demand and recovery on a $50 claim might not always defeat plaintiff’s right to costs; but the test of a just demand must ordinarily be the recovery of the amount demanded.

Judgment affirmed.