Stacy v. Kruser , 158 N.Y.S. 799 ( 1916 )

Carr, J.:

This is an appeal from an order of the County Court of Westchester county, affirming ?n order of the City Court of Mount Vernon that denied plaintiff’s motion for a retaxation of costs. This action was brought in the City Court of Mount Vernon to recover the sum of fifty-seven dollars and twenty cents. ■ The answer set up a counterclaim for the sum of eighty dollars in addition to denials of the plaintiff’s cause of action. On the trial of the issues the jury awarded a verdict in favor of the plaintiff in the sum of forty-one dollars and seventy cents. Thereupon the defendant taxed a full bill of costs against the plaintiff. The City Court of Mount Vernon is a local inferior court created by chapter 182 of the Laws of 1892. Section 55 of that statute describes it as “a court of record.” The act of 1892, in section 108 thereof, makes provision for the allowance of costs to prevailing parties in actions where neither pleading asks judgment for the sum of fifty dollars or more, and provides that in all other actions the same costs and allowances “as are now provided by law in actions and proceedings in the Supreme Court, except term fees, shall be allowed to the prevailing party.” Under section 3228 of the Code of Civil Procedure, which applies to the Supreme Court, as the plaintiff did not recover the sum of fifty dollars, she was not entitled to costs as of course. The defendant rests his claim for costs on section 3229 of the Code of Civil Procedure, which provides that the defendant is entitled to costs, of course, on the rendering of a final judgment in an action specified in section 3228 unless the plaintiff is entitled to costs as therein prescribed. If this section, 3229, is applicable to actions in the City Court of Mount Vernon, the order now before us on appeal must be affirmed. While section 108 of the statute of 1892 assimilates to actions in the City Court of Mount Vernon the provisions of section 3228 of the Code of Civil Procedure, it does not necessarily include section 3229. Under that section of the Code a defendant who has not prevailed in an action may have costs against a prevailing plaintiff under the defined circumstances. But section 108 of the statute of 1892 contemplates and provides for costs for prevailing parties. It reads: “ The following costs and allowances shall be recovered by the prevailing party, in all actions, proceedings and appeals under this act,” etc. And again in subdivision 2 of that section, where it assimilates the costs taxable in action^ in the Supreme Court to actions in the City Court of Mount Vernon, it uses the important words “shall be allowed to the prevailing party.” It would seem that it was the clear intent of the act of 1892 that costs in actions in the City Court of Mount Vernon should be recoverable only by the “ prevailing party.” Section 109 of that statute, which provides for the taxation of costs by the clerk of the court, again expresses the same idea. It declares: “ The clerk of said court shall, on two days’ notice, adjust and tax the costs and disbursements of the prevailing party, and the amount shall be included in the judgment,” etc. That is, the judgment in favor of the prevailing party, who in this case was the plaintiff. These views lead to a reversal of the order of the County Court of Westchester county, with ten dollars costs and disbursements. The matter is remitted to the City Court of Mount Vernon, with direction to that court to set aside the taxation of costs and disbursements in favor of the defendant in the action.

Jenks, P. J., Thomas, Stapleton and Mills, JJ., concurred.

Order of the County Court of Westchester county reversed, with ten dollars costs and disbursements, and matter remitted to the City Court of Mount Vernon, with direction to that court to vacate and set aside the taxation of costs and disbursements in favor of the defendant in the action.