Lockwood v. Waldorf — 70 N.Y. St. Rep. 855

Majority

p. 855

Orval A. Lockwood, App’lt, v. George A. Waldorf, Resp’t.

(Supreme Court, General Term, Second Department,

Filed December 2, 1895.)

Headnote

Causes of action to recover chattels.

Subdivision 2, section 3228 of the Code does not entitle plaintiff to' any costs where the value of the chattels is not fixed.

Appeal from'an order, vacating so much of the judgment in favor of plaintiff as awarded to him costs.

Bill & Gox and T N. Little, for app’lt; George H. Smith, for resp’t. 0

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 determined by the appellate court, except a judgment for the return of property the value of which was not fixed. The appellant relies bn section 3228 of the Code as to when plaintiff is entitled to costs. Subdivision'2 of that section says: •

p. 856

“ 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.