Gorton v. United States & Brazil S. S. Co. — 37 N.Y. St. Rep. 556

Majority

p. 556

George Gorton, Adm’r, Resp’t, v. The United States & Brazil S. S. Co. et al., App’lts.

(Supreme Court, General Term, First Department,

Filed March 13, 1891.)

Headnote

Costs—Negligence—Code Crv. Pno., §§ 1903, 3338.

In an action brought by an- executor or administrator under § 1903 of the Code, for causing the death of his testator or intestate by negligence, the plaintiff is not limited as to costs by the amount of his recovery, but upon recovering is entitled to full costs.

Appeal from an order allowing the taxation of a bill of costs against appellants’ pontention that under § 1902 of the Code the plaintiff could not recover more than six cents costs under the circumstances of the case.

Wm. B. Tullis, for resp't; H. Aplington, for app’lts.

This action was’brought under § 1902 of the .Code to recover $5,000 damages alleged to have been sustained by reason of the neglect of the defendants. . The trial resulted in a verdict of six cents in favor of the plaintiff, who, without notice, taxed the full bill of costs, which, upon re-taxing, was limited to six cents.

Upon the plaintiff’s motion, however, an order was granted authorizing the taxation of a full bill of costs, but granting to defendants a stay until after a determination of án appeal from that order.

The Code, § 3228, declares the plaintiff entitled to costs of

p. 557

course upon the rendering of a final judgment in his favor in either of the following actions:

3. An action specified in subdivision first, third, fourth or fifth of § 2863 of this act. But if in an action to recover damages for an assault, battery, false imprisonment, libel, slander, criminal conversation, seduction or malicious prosecution, the plaintiff recovers less than fifty dollars damages, the amount of his costs cannot exceed his damages.

Section 2863 referred to in § 3228 is one enumerating the civil actions which a justice of the peace cannot take cognizance of, and they are as follows:

3. Where the action is to recover damages for an assault, battery, false imprisonment, libel, slander, criminal conversation, seduction or malicious prosecution, or where it is brought under §§ 1837, 1843, 1868, 1902 or 1969 of this act.

This action is one embraced within the provisions of § 1902, and therefore one of those of which a justice of the peace cannot take cognizance, but it is not one of those specifically named in which a recovery of less than fifty dollars- damages limits, the amount of costs to the damages awarded.

The specific designation of the actions intended to be embraced in the limit of costs furnishes the most conclusive evidence of the intention of the legislature to exclude all others. The maxim JExpressio unius esi exclusio alterius applies with peculiar force.

Our attention has been called to the case of Garrabrant v. Sulli van, 13 Civ. Pro., 196, but that was a case for damages resulting from a fall into a coal hole, and the question here discussed, though apparently considered, is not so presented as to be regarded as controlling. The language of § 3228 is too emphatic to admit of any doubt, however ingeniously the arguments may be devised and employed. The plaintiff is thereby declared to be entitled to costs of course in actions of this character with others grouped with' it, but as to some of them the limit of costs is applied. The whole subject is embraced in the third subdivision of that section, and was considered, therefore, altogether, and both provision for costs and limit of them inserted in the same paragraph. Nothing on the subject can be said, therefore, to have been left to inference or implication or conjecture.

The order appealed from should be affirmed, with ten dollars costs and disbursements.

Van Brunt, P. J., and Daniels, J., concur.