Lockwood v. Waldorf — 98 N.Y. Sup. Ct. 281

Majority

p. 281

Orval A. Lockwood, Appellant, v. George A. Waldorf, Respondent.

Headnote

Action to recocer chattels— the ealue of the property must be fixed by the judgment to en title the plaintiff to costs.

Where an action is brought to recover chattels, and the plaintiff recovers a judgment directing a return of the property only, and the value of the property is not fixed, he is not entitled to costs.

Appeal by the plaintiff, Orvai A. Lockwood, from an order of the County Court of Orange county, granted at a Special Term thereof, entered in the office of the clerk of the county of Orange on the 27th day of April, 1895, striking from the judgment entered in the above-entitled action the part thereof which awards to the plaintiff costs and disbursements.

This action was commenced in a Justice’s Court to replevin certain chattels described in the complaint, and the plaintiff recovered judgment for $100 or the return of the property. He appealed from said judgment to the County Court, where a verdict was rendered “ by which the jury found for the plaintiff the possession of the property.”

Thereafter plaintiff entered judgment awarding to him possession of the property in question, and the clerk taxed and entered therein the sum óf $124.64, costs.

p. 282

Upon a motion made by the defendant to vacate and cancel that part of the judgment awarding costs to plaintiff, on the ground that there was no statute authorizing the award of costs to plaintiff, and that the same was illegal and void, the order appealed from was made.

T. N. Little, for the appellant.

George LI. Smith, for the respondent.

This is an appeal from the county judge of Orange county disallowing $124.64 costs awarded to plaintiff against defendant.

The county judge’s ruling was correct; there was nothing determined by the appellate court, except that the plaintiff was entitled to a judgment for the return of property the value of which toas not fixed,. The appellant relies on section 3228 of the Code of Civil Procedure as to when plaintiff is entitled to costs. Subdivision. 2 of that section says: “ An action to recover a chattel. But if the value of the chattel, or of all the chattels recovered by the plaintiff, as fixed, together with the damages, if any, awarded to him, is less than fifty dollars, the amount of his costs cannot exceed the amount of value and the damages.”

I find no means of assisting plaintiff under the jaw 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 the value of such property.

The other sections of the Code of Civil Procedure referred to by plaintiff are inapplicable to this case. The plaintiff is unfortunate, but there are no legal means of helping him out.

Order affirmed.

Brown, P. J., and Dykman, J., concurred.

Order affirmed, with ten dollars costs and disbursements.