McKuskie v. Hendrickson , 34 N.Y. St. Rep. 901 ( 1890 )

Barnard, P. J.

This action was tried before a court held by a justice of the peace, and the plaintiff recovered a judgment for $30 damages, and $9.26 costs. The defendant appealed, and demanded a new trial in the appellate court. Within 15 days after the service of the notice of appeal, the defendant offered to allow judgment for $5. The offer- was not accepted. On the new' trial, the plaintiff recovered $35 damages. The clerk taxed costs to the plaintiff, and the county court set aside the taxation. The case seems a plain one, under section 3070 of the Code. If an offer be made,within the 15 days after the service of the notice of appeal, and not accepted, the appellant must get a more favorable verdict, to be entitled to costs of the appeal, “otherwise the respondent is entitled to costs. ” There are two sections which affect the question of costs upon appeals from justice’s judgment. One offer, under section 3070, must be made before return, and one, under section 3072, after return filed. The first offer .operates upon the entire costs of the appeal, and the second only on the costs “from the time of the offer,” which is not accepted, and there is a failure to obtain a more favorable judgment. This offer comes within the section 3070. I presume that the affidavit does not show that the return was filed, but, under either section, the respondent was entitled to costs. The appellant did not reduce the recovery. Under section 3072, the appellant failed to receive a more favorable recovery, and thus was not entitled to receive costs from the date of the offer. The order setting aside taxation should be reversed, with costs, and disbursements, and the motion denied, with costs.