Vogel v. Schlueter — 80 N.Y. Sup. Ct. 595

Majority

p. 595

Herman Vogel, Appellant, v. Edward H. Schlueter and Another, Respondents.

Headnote

Costs— Code of Ciml Procedure, § 3070.

The provisions of section 3070 of the Code of Civil Procedure apply wherever an appellant is defeated in the lower court and obtains a more favorable judgment upon appeal.

Appeal by the plaintiff:, Herman Vogel, from an order of the County Court of Kings county, entered in the office of the clerk of the county of Kings on the 15th day of April, 1893, vacating and setting aside the taxation of costs made by the Kings county clerk on the 21th day of March, 1893.

Hemiam, Vogel, appellant, in person.

Frank JV. O'Brien, for the respondents.

This action was commenced in a court of a justice of the peace for the recovery of damages for the wrongful conversion of personal property belonging to the plaintiff:.

Upon the trial before a jury, a verdict was rendered in favor of the defendant, and from the judgment entered upon that verdict the plaintiff appealed to the County Court of Kings county, where there was a new trial before a jury and the plaintiff recovered a verdict for twelve dollars and thirty-three cents.

Neither party made any offer to allow judgment after the appeal to the County Court, which was taken July 11, 1891.

p. 596

TJpon this state of facts, the plaintiff claimed full costs, which were allowed to him by the clerk.

Subsequently an application was made to the county judge of Kings county to set aside the taxation of such costs, and the motion was granted. Erom the order granting such motion the plaintiff has appealed to this court.

The question is under the control of this statutory provision : If an offer is not made and the verdict, report or decision upon the -appeal is more favorable to the appellant by the sum of ten dollars than the verdict or decision in the court below, * * * the appellant is entitled to recover costs upon the appeal. (Code Civ. Proc. § 3070.)

This case fits the statute and the statute meets the case and controls it, and under its provisions the appellant was entitled to full costs.

The plaintiff was unjustly defeated in the lower court when he had a just claim, and he was compelled to appeal or suffer the loss of his claim and pay costs besides.

Upon the appeal lie recovered a judgment more favorable to him by more than ten dollars.

While it may be true in strictness of language that the words “more favorable to the appellant” imply that the judgment in the lower court was in his favor, we yet think the provision has application also when he was defeated in the lower court, and obtains a more favorable judgment upon the appeal. Such was the view of the court in the case of Vanderwerken v. Brown ( 38 Hun, 234 ), and we concur in that view.

The order from which the appeal is taken should be reversed, with ten dollars costs and disbursements, and the taxation of costs by the clerk in favor of the appellant should be affirmed.

Pratt, J., concurred; Barnard, P. J., dissented, being for affirmance under McKuskie v. Hendrickson ( 128 N. Y. 555 ).

Order vacating taxation of costs reversed, with costs and disbursements.

Cases cited

McKuskie v. Hendrickson 128 N. Y. 555 N.Y. 1891-10-27 p. 596