Majority
p. 199LOCKWOOD v. WALDORF. (Supreme Court, General Term, Second Department. December 2, 1895.) Argued before BROWN, P. J. and DYKMAN and PRATT, JJ.
Headnote
Costs—Right to—Action to Recover Chattels.Code Civ. Proc. § 3228, subd. 2, providing that plaintiff obtaining judgment in an action to recover chattels is entitled to costs, but, if the value of the chattels recovered is fixed at less than $50, plaintiff cannot recover costs exceeding the amount of value, does not entitle plaintiff to any costs where the value of the chattels is not fixed.
Appeal from order of Monroe county judge.
Action by Orval A. Lockwood against George A. Waldorf to recover possession of certain chattels. From an order vacating so much of the judgment in favor of plaintiff as awarded to plaintiff the sum of $124.64, costs, plaintiff appeals.
Affirmed.
Dill & Cox and T. N. Little, for appellant.
George H. Smith, for respondent.
This is an appeal from the county judge of Orange county, who disallows $124.64, costs awarded to plaintiff against defendant. The county judge must be right. There was nothing de
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termined by the appellate court, except a judgment for the return of property the value of which was not fixed. The appellant relies on section 3228 of the Code as to when plaintiff is entitled to costs. Subdivision 2 of that section says:
“In an action to recover chattels, but if the value of the chattels, or all of the chattels, recovered by plaintiff, as fixed, is less than $50, the amount of his costs cannot exceed the amount of value.”
I find no means of assisting plaintiff under the law. In the justice’s court the plaintiff recovered judgment for $100, or the return of the property. He appealed from this judgment, and got the same result, without damages or value of property. The other sections of the Code referred to by plaintiff are inapplicable to this case. The plaintiff is unfortunate, but there are no legal means of helping him out.
Judgment affirmed. All concur.