Weltman v. Posenecker — 42 N.Y.S. 699

Majority

p. 699

(18 Misc. Rep. 599.)

WELTMAN v. POSENECKER.

(City Court of New York, General Term.

December 12, 1896.)

Headnote

Costs—Right to Costs.

Code Civ. Proc. § 461, provides that a person permitted to sue in forma pauperis may prosecute his action without paying fees to any officer, and, if judgment is rendered against him, or his complaint is dismissed, costs shall not be awarded against him. Beld that, where plaintiff in such ease is wholly or partially successful, costs will follow as in an action by an ordinary litigant, and hence defendant is entitled to costs in an action by a poor person for personal injuries caused by defendant’s negligence, in which plaintiff recovers less than §50.

Appeal from special term.

Action by Rosa Weltman against Adolph Posenecker for personal injuries caused by defendant’s negligence, in which there was a verdict in favor of plaintiff for $25. From an order denying her motion to vacate and set aside the taxation of costs in favor of defendant and against plaintiff, she appeals.

Affirmed.

Argued before FITZSIMONS and O’DWYER, JJ.

M. Strassman, for appellant.

The plaintiff was permitted to sue in forma pauperis in an action to recover damages for personal injury sustained through negligence of the defendant, and on the trial recovered a verdict for $25.

Section 461 of the Code of Civil Procedure provides that a person so admitted to sue may prosecute his action without paying fees to any officer, and, if judgment is rendered against him, or "his complaint is dismissed, costs shall not be awarded against him. In this instance the complaint was not dismissed, nor was judgment rendered against plaintiff. On the contrary, she recovered a verdict. The action having been brought to recover damages for personal injury sustained through defendant’s negligence, the defendant is entitled to costs where the recovery is for less than $50. Rieger v. Watch-Case Co. (City Ct. Brook.) 13 N. Y. Supp. 788 .

Does the fact that the plaintiff has been permitted to sue in forma pauperis protect her from the imposition of costs in this case? We think not. The justices’ courts have jurisdiction in actions of this character, and, where the damages are less than $50, are the proper tribunals in which to maintain them. Section 461 simply provides for the prosecution of the action without payment of fees to any officer, and, where the complaint is dismissed, or judgment rendered against plaintiff, costs shall not be awarded. The section makes no provision regarding costs where the plaintiff is wholly or partially successful, and we are of opinion that section 3228 applies, and that, where a poor person is wholly or partially successful, costs will follow as in an action by an ordinary litigant.

The order should be affirmed, with costs.