Corsell v. Brooklyn Heights R. Co. — 157 N.Y.S. 1051

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p. 1051

CORSELL v. BROOKLYN HEIGHTS R. CO.

(Supreme Court, Appellate Division, Second Department.

March 24, 1916.)

Headnote

1. Costs @=22—Supreme Court—Queens County—Jurisdiction of County Court—Service Outside County.

Within Code Civ. Proc. § 3228, subsec. 5, denying costs to plaintiff unless he recovers $500, in an action brought in the Supreme Court, triable in the county of Queens, against a resident of the county, where it could have been brought, except for the amount claimed, in the County Court, the County Court would have jurisdiction, though service was out of the county.

[Ed. Note.—For other cases, see Costs, Cent. Dig. §§ 47-73; Dec. Dig. @=22.]

2. Costs @=22—Supreme Court—Queens County—Place of Service.

Under Code Civ. Proc. § 3228, subsec. 5, denying costs to plaintiff, unless he recovers $500, in an action brought in the Supreme Court, triable in Queens county, against a resident of the county, where it could have been brought, except for the amount claimed, in the County Court, it is not a condition to the denial of costs that summons be served In the county, as it is, under separate provisions of the section, as to actions triable in New York and Kings county.

[Ed. Note.—For other eases, see Costs, Cent. Dig. §§ 47-73; Dec. Dig. @=22.]

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p. 1052

Appeal from Special Term, Queens County.

Action by Terrance Corsell, an infant, by Rose Corsell, his guardian ad litem, against the Brooklyn Heights Railroad Company. From an order denying its motion to disallow costs, defendant appeals. Reversed, and motion granted.

Argued before JENKS, P. J., and THOMAS, CARR, MILLS, and RICH, JJ.

Harold L. Warner, of New York City, for appellant.

Arthur K. Wing, of New York City (Frank H. Gerrodette, of New York City, on the brief), for respondent.

[1,2] The County Court of the county of Queens had jurisdiction, although the summons should be served beyond that county, and as the recovery in the Supreme Court was less than $500 the plaintiff could not tax costs or disbursements. Section 3228 of the Code of Civil Procedure does not require, in such case, that the summons be served within the county, as is demanded in instances relating to the counties of New York and Kings, for which the same section.makes provision.

The order should be reversed, with $10 costs and disbursements, and the motion to disallow the costs should be granted.