Pierano v. Merritt — 96 N.Y. Sup. Ct. 207

Majority

p. 207

John B. Pierano, Respondent, v. John L. Merritt, Appellant.

Headnote

Costs upon appeal to a County Court — Code of Civil Procedure, § 8070.

Tlie plaintiff, in an action brought in a Court of a Justice of the Peace, recovered a judgment against the defendant for §200 and costs. Upon appeal to the County Court the plaintiff recovered a judgment for one dollar. Neither party made an offer of judgment as provided for in section 3070 of the Code of Civil Procedure.

Held, that the plaintiff wa§ entitled to recover costs upon the appeal..

Appeal by the defendant, John L. Merritt, from an order of the County Court of Westchester county, entered in the office of the clerk of the county of Westchester on the 21st day of May, 1894, vacating and setting aside the adjustment and taxation of costs and disbursements in favor of the defendant made by the clerk of the county of Westchester, and directing said clerk to tax and adjust the bill of costs offered by the plaintiff.

Charles Haines, for the appellant.

Jas. B. Lockwood, for the respondent.

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 one dollar, and the court ordered the county clerk to tax the plaintiff’s costs, which was done, at sixty-three dollars and six cents, 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 fifty dollars 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

p. 208

the plaintiff recovered a verdict for one dollar, each party claiming that he ivas 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 30?0 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 makes 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 favor 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.

Brown, P. J., and Pratt, J., concurred.

Order affirmed, with costs.