Levene v. Hahner — 66 N.Y.S. 480

Majority

p. 480

(32 Misc. Rep. 634.)

LEVENE v. HAHNER.

(City Court of New York,

General Term.

October 29, 1900.)

Headnote

Costs—Judgment in City Court—Case Transferred from District Court.

Where plaintiff commences an action for $100 damages in the district court, and the case is transferred to the city court on motion of defendant, it is error to tax the costs to plaintiff on his failing to recover a judgment of $50, since plaintiff is entitled to the same costs as if the case had been tried in the district court

p. 481

Appeal from special term.

Action by Jennie Levene against John Hahner. From an order taxing the costs to the plaintiff, she appeals.

Reversed.

Argued before. FITZSIMONS, C. J., and CORLAN and HASCALL, JJ.

Julius Lehman, for appellant.

Robert L. Turk, for respondent.

The plaintiff commenced this action against defendant in the Eighth judicial district court for $100, as damages for the loss of a bicycle belonging to her, through the negligence of defendant, who was a common carrier. The action upon defendant's motion was duly transferred to this court. Upon the trial, judgment was recovered against defendant for $43.75. Upon defendant’s application, a bill of costs was taxed by the clerk against plaintiff for $71.78, because she had failed to recover a judgment of $50 or over. Upon appeal to the special term by plaintiff, the clerk’s taxation was affirmed. In our judgment, this was error. The defendant in this court had no greater rights than those conferred upon him in the district court. His rights, as well as plaintiff’s rights, remained unchanged by the transfer. Upon recovery of this judgment, plaintiff obtained all the rights which she would have had if the action was tried in said court.

Order appealed from reversed, also clerk’s taxation, and he is directed to tax the charges allowed by the Code, in plaintiff’s favor. All concur.