Marsh v. Village of Lansingburgh

By the Court :

One point which we understand was not suggested to the learned county judge seems conclusive. The defendant relies on section 3245 of the Code of Civil Procedure.^

Section 3317, subdivision 13, declares that title 1, of chapter 21 (which includes section 3215) applies only to an action in one of the courts specified in subdivision 1. Subdivision 1 does not specify a Justice’s Court.

The defendant, however, urges that although this action was commenced in a Justice’s Court, yet it was taken by appeal to a County Court, which is one of those specified in subdivision 1, and, therefore, that it is now an action in the County Court; and hence that section 3215 does apply. But we cannot agree with this view. When the plaintiff commenced this action in a Justice’s Court, she was not required to have previously presented the claim to the fiscal officer, at the peril of losing costs under section 3215. For we have seen that that section does not apply to Justice’s Courts. Now it would be an unreasonable construction to hold that the defendant, by appealing to the County Court, could change the plaintiff’s rights in this' respect, and could deprive her of costs for having failed to present her claim under that section. Nor would it be an unreasonable construction even to hold that subdivision 13, by its reference to subdivision 1, included the words in that latter section contained viz.: “ An action commenced in the Supreme Court,” etc., and thus distinctly excluded actions commenced in a Justice’s Court.

We think the order should be reversed, with ten dollars costs and printing disbursements, and the determination of the clerk reversed, with ten dollars costs.

Present — Learned, P. J., Boardman and Potter, JJ.

Order reversed, with ten dollars costs and printing disbursements, and determination of the clerk reversed, with ten dollars costs.