Isidore Lipshen, Appellant, v. Abraham D. Epstein, Respondent

Isidore Lipshen, Appellant, v. Abraham D. Epstein, Respondent. Second Department, May 17, 1918. Costs — recovery of less than $260 in County Court of Kings county — defendant not entitled to tax costs. Where a plaintiff who is a resident of the county of Kings sues a defendant who is a resident of said county in the County Court instead of in the Municipal Court and recovers less than $250, he loses costs, hut is not required to- pay costs, and the defendant is not entitled to .tax the same. Appeal by the plaintiff, Isidore Lipshen, from an order of the County Court of Kings, county, entered in the office of the clerk of said county on the 8th day,of April, 1918, directing the clerk to tax costs in favor of the defendant. The action was for damages by reason of alleged leakage of water onto plaintiff’s premises. The defendant and plaintiff are both residents of the county of Kings. Instead of suing in the Municipal Court, the action was brought in the County Court, where the verdict was for only $225. It is admitted that this deprives plaintiff of any costs. The single point is whether it entitled defendant to tax costs. Bruce R. Duncan, for the appellant. Samuel Widder, for the respondent. . [MAJORITY — Putnam, J.:] Putnam, J.: An additional subdivision (5) was added to section 3228 of the Code of Civil Procedure, which, as amended, declared that if the defendant shall have been served with process within the city of New York, the plaintiff shall recover no costs or disbursements, unless he shall recover $250 or more. But there was added: “ The fact that in any action a plaintiff is not entitled to costs under the provisions of this subdivision shall not entitle the defendant to costs under the next following section.” (Laws of 1904, chap. 557; Laws of 1910, chap. 574; Laws of 1914, chap. 80; Laws of 1916, chap. 50.) The following section (3229) is taken from the old Code of Procedure, section 305, where the pivot was a recovery of fifty dollars. It gave defendant costs as of course, unless plaintiff was entitled to costs as prescribed in the preceding section. It seems clear that in the County Court of Kings county the penalty for not recovering $250 is to lose costs, but not to fay costs. (See Streat v. Wolf, 132 App. Div. 872.) I advise, therefore, that the order of the County Court of Kings county be reversed, with ten dollars costs and disbursements, and that defendant’s motion be denied. Jenks, P. J., Thomas, Mills and Blackmab, JJ., concurred. Order of the County Court of Kings county reversed, with ten dollars costs and disbursements, and defendant’s motion denied.