p. 279JAMES W. COMBS and SUSAN C. LITTLE, Appellants, v. MARY E. COMBS, Respondent.Headnote
Costs — when the successful party on an appeal from the judgment of a Justices’ Courtis entitled to, of course— Code of Civil Procedure, secs. 3228, 3347.Section 3228 of the Code of Civil Procedure providing that the plaintiff is entitled to costs, of course, in the actions specified in the subdivisions of that section, applies to actions commenced in a Justices’ Court and taken by appeal to the General Term of the Supreme Court, and is not limited by subdivision 13 of section 3347 of the said Code to actions commenced in the courts specified in subdivision 4 of the latter section.
Appeal from an order of the Monroe Special Term striking out the costs taxed on an appeal to this court.
The plaintiffs brought this action for the recovery of money only/ for use and occupation, in a Justices’ Court, and recovered. The defendant appealed to the County Court, where the judgment was modified so as to stand for eighty-seven dollars damages. The defendant then appealed to this court and the judgment was affirmed, the decision being silent as to costs. The plaintiff taxed them and the Special Term, on motion, struck them out. The respondent claimed that section 3228 of the Code of Civil’ Procedure, under which the costs were taxed, did not apply to actions commenced in a Justices’ Court.
Stull & Bennett, for the appellants.
J. M. Dunning, for the respondent”.
Section 3238 of the Code of Civil Procedure entitles the plaintiffs to the costs of the appeal to this court.
That section declares the recovery of costs is regulated as follows:
“(1.) In an action specified in section 3228 of this act the respondent is entitled to costs upon the affirmance.”
Turning back to section 3228 we find in subdivision i: “An ■action * * * in which the complaint demands judgment for a sum of money only ” is specified.
p. 280Such an action is this one, in which we pronounced a judgment of affirmance.
The character of the action is distinctly stated in section 3228, and therefore the section in- terms applies to it, and the costs must be given, as expressly declared in section 3228.
No award of them by the court was necessary. They follow the affirmance as a matter of statutory right. (Gray v. Hannah, 3 Abb. [N. S.], 183.) The question is not affected by subdivision 13 of section 3347 of the Code of Civil Procedure.
We should reverse the order of the Special Term, with ten dollars costs and disbursements.
Smith, P. J., and Haight, J., concurred.
Order appealed from reversed, with ten dollars costs and disbursements.