Warren v. Chase — 28 N.Y.S. 765

Majority

p. 765

(8 Misc. Rep. 520.)

WARREN v. CHASE.

(City Court of New York, General Term.

May 18, 1894.)

Headnote

•Costs—Disbursements—When Recoverable.

Under Code Civ. Proc. § 3228, subd. 3, providing that in certain eases the amount of plaintiff’s costs cannot exceed the damages recovered, where plaintiff recovers six cents damages, he is entitled to only six cents costs, without regard to the amount of his disbursements.

Appeal from special term. *

Action by Joseph Warren, an infant, by his guardian ad litem, against Raymond Chase. From an order allowing disbursements to plaintiff, defendant appeals. Reversed.

Argued before EHRLICH, C. J., and VAN WYCK and McCARTHY, JJ.

Mooney & Shipman, for appellant.

Thomas H. Rowlette, for respondent.

The decisions are uniform that as allowed by law, were always allowed by law as costs to the party entitled to recover costs. They cannot, as in this case, exceed the damages. Section 3228, subd. 3, Code Civ. Proc. We are clear that the justice erred in allowing the insertion of the disbursements in this case. The plaintiff, having recovered six cents damages, was only entitled to six cents costs, no matter what might be his disbursements. The orders appealed from should therefore be reversed, and the clerk’s taxation reinstated and affirmed. All concur.