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Frisch v. Dussault

152 N.Y.S. 15 Court N.Y. App. Div. Decision date 1915-03-03 English

Delivered by JOHN M. KELLOGG, J.

Contents

Majority

p. 15
(166 App. Div. 357)
FRISCH v. DUSSAULT.
(Supreme Court, Appellate Division, Third Department.
March 3, 1915.)

Headnote

Costs <§=222—On Appeal.
Under Code Civ. Proc. § 3070, providing, relative to appeals from Justice Court for a new trial in the County Court, that, if neither party makes an offer of judgment, the party in whose favor the verdict, report, or decision is given shall be entitled to recover his costs upon the appeal, where no offer of judgment was made on an appeal from a City Court, and plaintiff recovered less than $50, he was entitled to costs, notwithstanding section 3228, providing that, in actions other than those expressly specified therein, in which the complaint demands judgment for a sum of money only, plaintiff is not entitled to costs, unless he recovers $50 or more.
[Ed. Note.—For other cases, see Costs, Cent. Dig. § 833; Dec. Dig. <§=222.]
Appeal from Schenectady County Court.
Action by Joseph Erisch against Ernestina Dussault. From a judgment for plaintiff, defendant appeals. Affirmed.
Argued before SMITH, P. J., and KELLOGG, LYON, HOWARD, and WOODWARD, JJ.
Miller & Golden, of Schenectady (Arthur S. Golden, of Schenectady, of counsel), for appellant.
Ralph J. & Alvin Ury, of Schenectady, for respondent.

But one question is raised upon this appeal. The plaintiff recovered judgment in the City Court of Schenectady for $25. Defendant appealed to the County Court for a new trial, upon which the plaintiff recovered judgment for $21.50. Neither party made any offer of judgment, as provided by section 3070

p. 16
of the Code of Civil Procedure. The County Court awarded costs to the plaintiff.

The defendant claims that the plaintiff, not having recovered $50 damages in the County Court, under section 3228 of the Code of Civil procedure, is not entitled to costs. Section 3070 of the Code of Civil Procedure reads:

“If neither party makes an offer, as provided herein, the party in whose favor the verdict, report or decision in the appellate court is given shall he entitled to recover his costs upon the appeal.”

The County Court properly held that the plaintiff was entitled to costs. Lawson v. Speer, 91 App. Div. 411 , 86 N. Y. Supp. 915 ; Pierano v. Merritt, 148 N. Y. 289 , 42 N. E. 718 .

The judgment should therefore be affirmed, with costs. All concur.

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