Joseph Frisch, Respondent, v. Emeline Dussault, Appellant

Joseph Frisch, Respondent, v. Emeline Dussault, Appellant. Third Department, March 3, 1915. Costs — recovery in County Court of less than fifty dollars — failure to make offer of judgment under section 3070 of the Code of Civil Procedure. Where, on appeal from a judgment of the City Court of Schenectady for twenty-five dollars, the County Court orders a new trial in which the plaintiff recovers judgment for twenty-one dollars and fifty cents, and neither party makes an offer of judgment as provided by section 3070 of the Code of Civil Procedure, the plaintiff is entitled to costs. Appeal by the defendant, Emeline Dussault, from a judgment of the County Court of Schenectady county, entered in the office of the clerk of said county on the 5th day of June, 1914, upon the decision of the court after a trial before the court without a jury, and also from an order entered in said clerk’s office on the 26th day of June, 1914, awarding costs to the plaintiff against the defendant. Miller & Golden [Arthur S. Golden of counsel], for the appellant. Ralph J. Ury and Alvin Ury, for the respondent. [MAJORITY — Kellogg, J.:] Kellogg, J.: But one question is raised upon this appeal. The plaintiff recovered judgment in the City Court of Schenectady for twenty-five dollars. Defendant appealed to the County Court for a new trial upon which the plaintiff recovered judgment for twenty-one dollars and fifty cents. Neither party made any offer of judgment as provided by section 3070 of the Code of Civil Procedure. The County Court awarded costs to the plaintiff. The defendant claims that the plaintiff, not having recovered fifty dollars damages in the County Court, under section 3228 of the Code of Civil Procedure, is not entitled to costs. Section 3070 of the Code of Civil Procedure reads: “If neither party makes an offer, as provided herein, the party in whose favor the verdict, report or decision in the appellate court is given, shall be entitled to recover his costs upon the appeal.” The County Court properly held that the plaintiff was entitled to costs. (Lawson v. Speer, 91 App. Div. 411; Pierano v. Merritt, 148 N. Y. 289.) The judgment should, therefore, be affirmed, with costs. Judgment unanimously affirmed, with costs.