Peirano v. Merritt — 68 N.Y. St. Rep. 827

Majority

p. 827

John B. Peirano, Resp’t, v. John L. Merritt, App’lt.

(Supreme Court, General Term, Second Department,

Filed July 26, 1895.)

Headnote

Appeal — New trial in county court — Costs.

A party, who recovers judgment upon an appeal from a justice’s court for a new trial in the county court, for a less amount than he recovered before the justice, is entitled to costs in the absence of an offer of judgment by either party.

Appeal from an order taxing plaintiff’s costs.

James B. Lockwood, for app’lt; Charles Haines, for resp’t.

— This is an appeal from an order taxing costs of the plaintiff and respondent in this action, which was tried in the county court of Westchester county on an appeal from a justice’s court, demanding a new trial in the county court. No offer was made by either party to take or allow judgment to be taken for a certain sum. The plaintiff recovered a judgment in the court of a justice of the peace for $200 and costs. In the county court the plaintiff recovered a verdict of $1, and the court ordered the county clerk to tax the plaintiff’s costs, which was done at $63.06; and the defendant appealed to this court from the order directing such taxation. So it will be seen that the plaintiff recovered a judgment for more than $50 in the court of the justice of the-peace, and the defendant appealed to the county court, and demanded a new trial therein. Neither party made an offer of judgment as provided for in section 3070 of the Code of Civil Procedure. On the new trial the plaintiff recovered a verdict for $1, each party claiming that he was entitled to costs. The county judge decided that the plaintiff should tax his costs, and this appeal is from that order; and it involves the construction of section 3070 of the Code of Civil Procedure. That section, after providing for making an offer of judgment after an appeal to the county court, further provides:

“ Where an offer is made as above provided, the party refusing to accept the same, shall be liable for costs of the appeal, unless the recovery shall be more favorable to him than the sum offered-If neither party make an offer as provided herein, the party in whose favor the verdict, report or decision in the appellate court is given shall be entitled to recover costs upon the appeal.”

Our conclusion is that this case falls within the last part of the section quoted, because no offer was made, and that the party in whose favpr the verdict was given was entitled to costs. That party was the plaintiff, and, therefore, the order allowing him costs was proper, and should be affirmed, with costs.

All concur.